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THE 

CONSTITUTION 

OP 

THE UNITED STATES 

COMPARED WITH OUR OWN. 



By the same Author, 

Notes on Public Subjects, made during a Tour in the 
United States and in Canada. 1852. 10s. 6c?. 

The Political Experience op the Ancients, in its Bear- 
ing dpojn Modern Times. 1852. 2s. 6d. 

u A valuable little book on the philosophy of Govern- 
ment." — Spectator. 



*/ 



THE 



CONSTITUTION 



THE UNITED STATES 



COMPARED WITH OUE OWN. 



HUGH SEYMOUR TREMENHEERE. > 



. . . " juxta sequitur jactantior Ancus, 
Nunc quoque jam nimium gaudens popularibus auris." 

Virgil. 



LONDON: 

JOHN MURRAY, ALBEMARLE STREET. 

1854. 

[The AutJwr reserves to himself the right of authorising a 
Translation of this Work.] 






c*1 



PRINTED BY WOODFALL AND KINDER, 

ANGEL COURT, SKINNER STREET 



:;5? 



CONTENTS. 



Page 
INTRODUCTION ix 

CHAPTER I. 
Different Principles of Government in the diffe- 
rent Colonies while they remained under British 
Rule 1 

CHAPTER II. 
Progress towards' Independence 22 

CHAPTER III. 
The Revolutionary Government ; the Confederation 31 

CHAPTER IV. 
The Constitution 37 

CHAPTER V. 
The Preamble 49 

CHAPTER VI. 

Necessity of separating; the Legislative, Executive, 
and Judicial Powers 58 



VI CONTENTS. 

Page 
CHAPTER VII. 

The Senate 66 

CHAPTER VIII. 
The House of Represent atives 81 

CHAPTER IX. 
Elections 106 

CHAPTER X. 
Payment op Members 137 

CHAPTER XL 
The President's Negative 168 

CHAPTER XII. 
The President's Message 177 

CHAPTER XIII. 
Powers of Congress 183 

CHAPTER XIV. 
The Executive 198 

CHAPTER XV. 
The Judiciary 248 

CHAPTER XVI. 
Concluding Remarks 286 



CONTENTS. Vll 



NOTES, 

Page 
Note I. — The over-predominance of any one political ele- 
ment in a Constitution, destructive of freedom . 300 

Note II. — Extract of Letter from Mr. Jay to Washington, 
on the Balance of Power in the new Government. 
— President John Adams on the same subject . . 303 

Note III.— The Tyranny of the Majority . . . .307 

Note IV. — Growing habit of External Aggression in the 

Democracy of the United States . . . .312 

Note V. — The independence of the Judges destroyed in 
upwards of five-sixths of the States, and threatened 
in the rest ; consequent Danger to Freedom, and to 
the security of Life and Property .... 314 

Note YI. — On the same Subject 316 

Note YII. — On the same Subject. — Abuse of the power 

of Pardoning in the United States .... 318 

Note YIII. — On the Transmission of Property in the 

United States 321 

Note IX. — On the same Subject 327 

Note X.— On the Theory of the " Rights of Man" as the 
foundation of political power. — On the true founda- 
tion of Government 331 

Note XL — On the Slavery Question .... 337 

Note XII. — Sentiments of Washington, President John 

Adams, and others, on the Constitution . . . 344 



Vlll CONTENTS. 

Page 
Note XIII. — On the System of Elementary Education in 

the United States 349 

Note XIV. — Additions made to the Estimates for the year 

1852-3, by the Democratic Majority of Congress . 357 

Note XV.— List of Presidents of the United States . 360 

Note XVI.— List of States.— Population . . . .361 



APPENDIX. 



An Act to prevent Frauds upon the Treasury of the 
United States 363 



THE CONSTITUTION OF THE UNITED STATES . 368 



INTRODUCTION. 



The state of our representation being probably about 
to be considered in the ensuing Session of Parliament, 
there will be a natural disposition in many minds to take 
a survey of some of the other systems of representative 
government which, equally with our own, have for 
their object the establishment of a rational freedom. 

Such representative governments are indeed but few. 
The hopes formed during upwards of thirty years of 
peace were dissipated (it is to be hoped only for a time) 
by the events of 1848 ; and the civilised world has been 
compelled to mourn over the failure of nearly all the 
attempts then made to add to the number of free go- 
vernments, or to widen the foundations of liberty in 
those that did exist. 

Into the much-disputed question of the causes of 
those failures, it is not my present purpose to enter. 
Suffice it to say, that whoever has made them the 
subject of impartial study, must have found those 
latter years of continental history fertile in warnings as 
to the peril of delay when the season for salutary 
reform is fully come, and abounding in examples of 
the greater fault, of ruining all the hopes of temperate 
and reasonable ameliorations, by presumption, precipi- 
tancy, or personal ambition. 



X INTRODUCTION. 

The instances on the continent of Europe in which 
the national liberties have for the first time emerged 
out of the struggles of the last six years, or have been 
extended and fortified by them, are but few; and we 
could scarcely expect to derive from those cases, or 
from the other constitutional governments of the Conti- 
nent, instruction upon the particular points which are 
soon about to occupy us here. The course of those 
changes on the Continent has indeed been watched 
attentively in this country, and with much public sym- 
pathy; and it has been satisfactory to observe that 
where success has been greatest in the new career of 
freedom, as in Sardinia, it has arisen from the fact that 
her social arrangements have enabled her to adopt 
political institutions most nearly resembling our own. 
Belgium and Holland have derived strength and con- 
fidence from the danger which at one time threatened 
them ; and their free governments have been found to 
rest on a secure basis of patriotism and public spirit. 
Denmark, still occupied in adjusting her constitutional 
powers, has maintained the integrity of her territory, 
and has won for herself a high place in the estimation 
of Europe by her loyal, brave, and constitutional stand 
against aggression.* Norway, depending on her strong 

* The battle of Idsted, in which, in 1851, the small Danish 
army defeated and destroyed the forces of the Frankfort Par- 
liament, "recruited by many thousands of volunteers from 
the Prussian Army, and led by many of the most distinguished 
military men in Prussia, lent by the Prussian Government for 
the occasion," is said by military authorities to have been the 
most scientific battle fought since the peace of 1815. (Laing's 
Denmark and the Duchies. 1852.) 



INTRODUCTION. XI 

national feeling for the preservation of institutions 
which suit her circumstances, has remained unassailed. 
Sweden has not yet entered upon the long-projected 
amendments of her cumhrous political system. Prussia, 
together with the smaller German States, are still in 
the leading-strings of Bureaucracy, and have yet 
much to do towards attaining a well-regulated liberty, 
worthy of the great German people. Spain and 
Portugal have made no very apparent progress to- 
wards infusing the true spirit of freedom into the forms 
of free government, which have hitherto in their hands 
been little more than instruments of arbitrary power and 
bad faith. Over the rest of Europe, from the Pyre- 
nees to the Carpathians, the experience that had been 
gathered, and the hopes that had been formed of con- 
stitutional liberty, have for the time been overwhelmed 
and scattered, and men have now to wait the growth of 
maturer councils, or of that solidity and strength of 
moral character, and that temper and self-restraint in 
political action, without which the framework of con- 
stitutional government serves but the purposes of cor- 
ruption or oppression. 

If from none of the above we are likely to derive 
political lessons of any great value to ourselves at this 
particular moment, when we are about again to pass in 
review our own political arrangements with the expecta- 
tion of amending some few of them, we naturally turn 
next to the great community on the other side of the 
Atlantic. 

We are led to ask whether the new form of free 
government, established in the United States in 1789, 



Xll INTRODUCTION. 

offers any peculiarities which might be usefully adopted 
here, or whether experience has there brought to light 
any defects in theory or in practice, which may be re- 
garded as warnings for ourselves. 

Desirable as such an inquiry may be at the present 
moment, it is not a very easy matter to pursue it. It 
may indeed be not difficult for any one to possess 
himself of a copy of the Constitution of the United 
States — a document occupying a few pages only — or 
to refer to it in any work of modern history. But a 
perusal of the document itself will advance him very 
little on his way towards understanding the objects at 
which it aimed, the reasons on which it was founded, 
the contrasts and analogies it presents to our own and 
to all previous forms of free government, and the 
lessons to be learnt from the sixty-five years of ex- 
perience to which it has now been subjected. 

To attain that knowledge, even any intelligent 
citizen of the United States must have recourse 
to voluminous and learned works, which require time 
and study to master. The principal of these are 
the " Commentaries" of Mr. Justice Story, and those of 
Mr. Justice (afterwards Chancellor) Kent, the first in 
three, the second in four thick octavo volumes. Next 
in value and importance, are the papers forming the 
collection of the "Federalist," written by some of the 
leading statesmen of the time of the separation from 
this country. Equal to these is the very learned and 
admirable "Defence of the American Constitutions" 
against the attack of M. Turgot, by Mr. John Adams, 
afterwards the second President of the Republic. 



INTRODUCTION. Xlll 

(London, New Edition, 1794, 3 vols.) Then follow 
the numerous volumes of reports of the decisions of the 
Supreme Court of the United States ; also various other 
books of legal authority, such as Tucker's edition of 
"Blackstone's Commentaries;" and, lastly, the masterly 
analysis by M. de Tocqueville, of the social and poli- 
tical condition of the people of that country. 

I am not aware that any attempt has been made to 
place before the public in this country in an accessible 
shape, the Constitution of the United States, set in the 
light thrown upon it by some of the highest minds 
which that country has produced ; illustrated by some 
portions of the experience which time has brought 
forth; and contrasted with those principles and practices 
which we cherish as the main supports of our system 
of constitutional government. 

It appears to me that there are public reasons why 
this task should be undertaken at this period ; and at 
the risk of executing it imperfectly, I venture to put 
together the results of such reading and personal in- 
quiry as, during some years past, I have from time to 
time been able to bring to bear upon the subject. 

I purpose following very nearly the arrangement of 
Mr. Justice Story in his " Commentaries," and shall, 
in the first place, state in as compendious a manner as 
is consistent with clearness, the substance of that 
learned judge's remarks and opinions, upon each of the 
most important articles of the Constitution. 

To this I shall add, where desirable, the observations 
of the authors of the " Federalist," and also those of 
Mr. Justice Kent, under the same heads, together with 



XIV INTRODUCTION. 

extracts from any other writers whose facts and opinions 
may seem worthy of consideration in connection with 
those of the above principal authorities. 

And, finally, I shall take occasion to point out the 
essential differences between the system of government 
in the United States and our own, and draw such con- 
clusions from those points of difference as the facts 
may justify, and as may seem important to be kept in 
mind at a time when we are about to touch the frame- 
work of our own system with a view to its further 
amendment. 

It is proper to say a word or two more as to the high 
character of the American works which I am about to 
follow. 

The " Commentaries " of Professor Story stand at 
the head of all the writings on the subject of the 
American Constitution, and, in conjunction with his 
other works, have acquired for their learned author a 
judicial authority of the first order throughout Europe. 
He was appointed in 1811 one of the Justices of the 
Supreme Court of the United States. He also obtained 
the "Dane" Professorship of Law in Harvard Univer- 
sity, near Boston, and in that capacity published his 
" Commentaries on the Constitution of the United 
States," in the year 1833. The edition which I have 
quoted from is the last, that of 1851. (Boston.) 

These Commentaries occupy the same place in 
literature as an exposition of the Constitution of the 
United States, as is occupied by " Blackstone's Com- 
mentaries upon the Constitution and Common Law of 
England." They are conspicuous for their calm tone, 



INTRODUCTION. XV 

correct style, and measured language, no less than for 
careful research and strictness of reasoning. Though 
a faithful citizen of the United States, and a patriotic 
admirer of the main principles of her Constitution, he 
is too hold to disguise his disapproval of what he 
deems imperfections, too honest to conceal his fears, 
and too sincere a lover of truth to shrink from or 
pervert it. 

Next in authority are the "Commentaries" of Mr. 
Justice Kent, Judge of the Supreme Court of New 
York, and Professor of Law at Columbia College in 
the same State. This voluminous and learned work is 
chiefly occupied with comments on the common law ; 
but the considerable portion devoted to the Constitu- 
tion of the United States is not less characterised by 
a" spirit of fairness and truthfulness than the work of 
Mr. Justice Story. It is, under ?ome heads, more 
copious, and abounds in valuable notes bringing down 
the experience of the working of the Constitution to 
the year 1844 * 

But the great sources of constitutional doctrine 
from which these and other writers have alike " drawn 
by far the greatest part of their most valuable 
materials," are "The Federalist," t an "incomparable 
commentary of three of the greatest statesmen of their 
age" (Mr. Madison, Mr. Hamilton, and Mr. Jay) ; and 
also the highly-esteemed judgments of Chief Justice 
Marshall upon constitutional law. " The former have 
discussed the structure and organisation of the national 

* New York. 1844. t New York. 1802. 



Xvi INTRODUCTION. 

government, in all its departments, with admirable 
fulness and force. The latter has expounded the 
application and limits of its powers and functions 
with unrivalled profoundness and felicity." * To these 
are to he added the Keports of Dallas, Crank, and 
Wheaton, of the decisions of the Supreme Court of 
the United States ; other collections of judicial reports, 
and the statutes of the various States ; Eawle on the 
Constitution; and the journals of Congress. I have 
found in the British Museum all of the above which I 
had not at hand. 

Of the works of M. de Tocqueville,f it is unneces- 
sary to speak. Their accuracy and impartiality are as 
universally acknowledged as the high powers of obser- 
vation and analysis which they display. 

I shall have occasion to notice more recent facts 
which have come before the public since the date of 
these several writers, partly collected by myself in that 
country in 1851, partly obtained since, chiefly from 
public sources of information. 

From the materials derived from the above sources, 
I shall draw any inferences and institute any compari- 
sons which may strike me as instructive, and desirable 
to be borne in mind in this country. 

January, 1854. 



* Story. Preface, p. 1. 

t De la Democratic en Amerique, published in 1835, Trans- 
lated by Henry Reeve, Esq. 2nd Edition, 1836. Second Part 
of M. de Tocqueville's Work, Paris, 1840. 



THE 

CONSTITUTION 



OF 



THE UNITED STATES 

COMPAEED WITH OUB OWN. 



CHAPTER I. 



DIFFERENT PRINCIPLES OF GOVERNMENT IN THE 
DIFFERENT COLONIES WHILE THEY REMAINED 
UNDER BRITISH RULE. 

Political reasonings upon the state of a 
country, and speculations as to its future 
course, are too apt to be conducted without 
sufficient reference to its previous history. 
This appears to be frequently, and perhaps 
not altogether unnaturally, the case with re- 
spect to the United States; for the present 
vast proportions of that great community have, 
in their rapid growth, shut out the view, and 
very nearly extinguished the thought, of all 



c 2 DIFFERENT PRINCIPLES OF GOVERNMENT [oh. i. 

that lies in the obscurity of the past beyond 
them. 

But neither the state of society in the United 
States, nor the spirit of its Constitution, can be 
thoroughly understood or properly appreciated 
without a previous knowledge of the different 
principles of government which prevailed in 
the different States while they remained under 
British rule. 

I propose, therefore, in this introductory 
chapter, to give a very summary sketch of the 
constitutional arrangements that existed in the 
American colonies before their separation from 
the mother country. 

The Governments of the original thirteen 
States are described by Judge Blackstone in 
his "Commentaries," as Provincial, Proprie- 
tary, and Charter Governments. But this 
description, though correct in an historical 
point of view, and interesting in reference to 
the various steps and processes in the settle- 
ment of that country, affords no key to those 
causes, which, in the words of Mr. Justice 
Story, "have impressed upon each colony 



ch. I.] m THE DIFFEKENT COLONIES. 3 

peculiar habits, opinions, attachments, and 
even prejudices." * 

The existence of those different " habits, 
opinions, and attachments," in different parts 
of the Union, is very generally overlooked in 
a superficial view of the state of things in that 
country. That they exercised great influence 
at the time of the separation from us, in deter- 
mining the kind of government then adopted, 
there can be no doubt. And they have not 
ceased to act powerfully, in a social, as well 
as a political point of view, up to the present 
day. 

Those differences are traceable to the dif- 
ferent forms of government originally given to, 
or adopted by, the different States ; and fur- 
ther, to their adoption with greater or less 
strictness, or their rejection, of the principle 
of the English common law in regard to the 
descent of property. 

Ten out of the original thirteen States pos- 
sessed, down to the time of the Revolution, 
forms of government, all of which, with some 

* Page 1. 

B 2 



4 CONSTITUTION OF VIRGINIA. [oh. i. 

varieties of detail, bore as strict a resemblance 
to our own as was possible under the circum- 
stances of a new country. They may all be 
described as moderate constitutional govern- 
ments. The governor was the king's repre- 
sentative ; and the Crown also appointed a 
council, which was to a certain extent an 
upper house of legislature ; not invested, how- 
ever, with independent legislative power, but 
acting as a consultative body and in concur- 
rence with the executive. On the other hand, 
the principle of popular freedom was recog- 
nised, in the authority given to the governor 
" to convene a general assembly of representa- 
tives of the freeholders and planters." The 
provincial assembly thus constituted, had power 
(in the words of the different charters) "to 
make local laws and ordinances not repugnant 
to the laws of England, but as near as may be 
agreeable thereto, subject to the ratification or 
disapproval of the Crown." 

The States that possessed this form of go- 
vernment were Virginia, Massachusetts (in- 
cluding New Hampshire and Maine), Mary- 



ch. i.] CONSTITUTION OF VIRGINIA. 5 

land, New York, New Jersey, Pennsylvania, 
Delaware, North Carolina, South Carolina, 
and Georgia. 

Of these, it is only necessary to advert in 
any detail to the first two. 

Virginia, " the first permanent settlement 
made in America under the auspices of Eng- 
land," under the Charter of James I. to Sir 
Thomas Gates and his associates, in the vear 
1606, possessed originally, in accordance with 
the limited views of the age in those matters, 
very few political rights. But in 1 61 9, a re- 
presentative assembly was called together by 
the governor; and in 1621, the council of the 
company in England gave permanence to this 
act, by an ordinance vesting the legislative 
power, " partly in the governor, who held the 
place of the sovereign, partly in a council of 
State named by the company, and partly in 
an assembly composed of representatives freely 
chosen by the people." No law was to be in 
force " until ratified by a general court of the 
company, and returned under its seal to the 
colony." And the ordinance " further re- 



6 CONSTITUTION OF VIRGINIA. [ch. i. 

quired the general assembly, and also the 
council of State, to imitate and follow the 
policy of the form of government, laws, cus- 
toms, and manner of trial, and other adminis- 
tration of justice used in the realm of England 
as near as may be." Although this form of 
government was shortly after overthrown by a 
process of "quo warranto" (1624), it was re- 
established in nearly the same form by Charles 
I. ; and the Revolution of 1688 found the 
colony, " if not in the practical possession of 
liberty, at least with forms of government well 
calculated silently to cherish its spirit." # 

The course of public opinion in Virginia is 
strongly marked by two circumstances in the 
legislation of that colony — the supremacy of 
the Church of England, and the strictness of 
entails. 

By one of the earliest Acts of the colonial 
legislature, the Church of England was esta- 
blished, " and its doctrines and discipline were 
strictly enforced." The clergy " were amply 
provided for by glebes and tithes," and " the 

* Story, § 49. 



ch. l] CONSTITUTION OF MASSACHUSETTS. 7 

performance of parochial duties peremptorily 
required." " The first law allowing toleration 
to Protestant dissenters was passed in the year 
1699;" but, subject to this, "the Church of 
England seems to have maintained an exclu- 
sive supremacy down to the period of the 
American Revolution." * 

With regard to entails, an Act was passed 
in the colony in 1705, to prevent their being 
barred by the ordinary process of fine or re- 
covery, and requiring " a special Act of the 
legislature in each particular case." Though 
subsequently modified so as to exclude small 
estates under 200/. in value, the general law 
remained in force to the period of the Re- 
volution ; and, " in this respect, the zeal of 
the colony to secure entails and perpetuate 
inheritances in the same family outstripped 
that of the parent country."* 

Massachusetts obtained from William and 
Mary, in the year 1691, the Charter, under 
which its government was conducted down to 
the time of the Revolution. The charter is 

* §50. 



8 - CONSTITUTION OF MASSACHUSETTS. [ch. i. 

described by Story as containing a liberal grant 
of authority to the province, and a reasonable 
reservation of the royal prerogative. 

The principle of popular freedom had already 
taken deep root in Massachusetts, and in the 
other New England colonies which were by 
this charter incorporated with it. There are 
few events in history more striking and event- 
ful than the landing of the small band of 
refugees from religious persecution — " the 
Pilgrim Fathers," — on the bleak and forbid- 
ding shores of Cape Cod, in the winter of 
1620, and their first act, their drawing up and 
signing their simple and voluntary compact of 
government. By this instrument they " cove- 
nant and combine themselves together into a 
civil body politic, for the better ordering, and 
preservation, and furtherance," of the ends 
they had in view, — namely, the founding of a 
colony "for the glory of God, and the ad- 
vancement of the Christian faith, and the 
honour of their king and country." And 
although they subsequently applied for and 
obtained from the Plymouth Company in Eng- 



cm. l] CONSTITUTION OF MASSACHUSETTS. 9 

land, such power as that company could give, 
to confirm their legislation, yet they never 
received any powers from the Crown itself, 
but continued to exercise, under their original 
compact, " the most plenary executive, legis- 
lative, and judicial authority," until they were 
incorporated with the province of Massachu- 
setts by the charter above mentioned, in 1691. 
In a similar spirit the company that obtained 
from Charles I. the Charter of 1628, consti- 
tuting them a body-politic, under the title of 
" The Governor and Company of Massachu- 
setts Bay, in New England," (in continuation 
of the Charter of 1620, to " The council esta- 
blished at Plymouth, in the county of Devon, 
for the planting, ruling, ordering, and govern- 
ing of New England, in America,") first took 
the bold step of transferring themselves and 
their charter to the territory granted to them, 
and next proceeded to extend their acts far 
beyond the expressed powers of government 
granted by that charter, which they would not 
admit as " furnishing any limit to them upon 
the freest exercise of legislative, executive, or 

b3 



10 CONSTITUTION OF MASSACHUSETTS. [ch. i. 

judicial functions." " They did not view it as 
creating an English corporation under the 
narrow construction of the common law, but 
as affording the means of founding a broad 
political government, subject to the Crown of 
England, but yet enjoying many exclusive pri- 
vileges." # 

The Charter of 1691 strengthened this union 
of free legislative action with the reasonable 
prerogatives of the Crown. " It reserved to 
the Crown the appointment of the governor, 
lieutenant-governor, and secretary of the 
province j" and " provided for the appoint- 
ment of twenty-eight councillors, who were 
chosen by the general court." This general 
court was to consist of " the governor and 
council for the time being, and of such repre- 
sentatives being freeholders as should be an- 
nually elected by the freeholders of each town, 
who possessed a freehold of forty shillings 
annual value, or other estate to the value of 
forty pounds." " Each town was entitled to 
two representatives," subject to alterations in 
* §§ M. 67. 



ch. l] CONSTITUTION OF MASSACHUSETTS. 1 1 

this number, which might be introduced from 
time to time by the general court. To the 
governor was also reserved the right of " no- 
minating, and with the advice of his council, 
appointing to all military and judicial offices, 
those of the Court of Admiralty excepted, 
which were reserved to the Crown. And the 
general court was invested with full power to 
levy taxes, " and make all wholesome laws 
and ordinances, so as the same be not repug- 
nant or contrary to the laws of England." 
" All laws, however, were to be sent to Eng- 
land for approbation or disallowance,'' and if 
disallowed by the Crown within three years, 
they were to become void.* 

Under the previous charters, and by the 
legislation that took place by authority of 
them, most of the " public rights of English- 
men," known in those days, were secured by 
the colonists. Under this Charter of 1691, 
whatever liberties had been omitted were gra- 
dually introduced ; a " Habeas Corpus" Act, 
which was at first disallowed, having been ex- 
* § 71. 



12 CONSTITUTIONS OF OTHER STATES. [ch. i. 

tended to the colonies in the reign of Queen 
Anne. 

Entails were recognised by the law, but not 
encouraged by the policy of the State. Never- 
theless, the principle of preferring the eldest 
son was so far admitted, that in cases of in- 
testacy a double portion was assigned to him. 

In regard to ecclesiastical matters, liberty 
of conscience was granted by the Charter of 
1691, "to all Christians, except Papists;" 
and " ample provision" was made " for the 
congregational church, exclusive of all others."* 

The above were the general principles of 
government and legislation in the two " ori- 
ginal and parent colonies ;" and the eight 
others already enumerated f followed in the 
same general course. Maryland received its 
first Charter in 1632, and its first legislative 
assembly was held in 1634. Its charter is re- 
markable as containing no clause requiring 
the transmission of the laws passed in the 
province, to the Crown, for its approval. New 
York, at the Revolution of 1688, declared itself 
* § 71. t Page 4. 



ch.l] CONSTITUTIONS OF OTHER STATES. 13 

entitled to all the privileges of British subjects, 
and in 1691, on the arrival of the governor 
appointed by the Crown, proceeded to call a 
legislative assembly, and to pass Acts decla- 
ratory of their rights and privileges as English- 
men. New Jersey, in 1664, adopted a similar 
form of government, which was continued by 
the Charter of Queen Anne, of 1702. Penn- 
sylvania dates its government, of the same 
form, from 1681, and Delaware from 1703 ; 
North Carolina from 1662, after which fol- 
lowed the impracticable, highly aristocratic 
constitution of John Locke, which filled the 
interval from 1669 to 1693, and which was, 
after some intervening troubles, succeeded by 
the constitution of 1720 : South Carolina dates 
her constitution from 1732, and Georgia from 
the year 17<51.* 

And in these same States, the descent of 
property was — in the largest and perhaps the 
most important of them — in New York, in 
North and South Carolina, and in Georgia — 
the same as in England, and remained the 

* §§ 74 to 145. 



1 4 CONSTITUTIONS OF OTHER STATES. [oh. l 

same in the Carolinas until the year 1791. 
In New York, indeed, " the common law 
course of descents appears to have been 
silently but exclusively followed ; and perhaps 
New York was more close in the adoption of 
the policy and legislation of the parent country 
before the Revolution than any other colony."* 
In Pennsylvania, Delaware, and New Ply- 
mouth, the eldest son, in case of intestacy, was 
to have a double portion. The sole exception 
among these States to this course of policy was 
Maryland, in which estates were made partible 
among all the children. 

In this large group of States, therefore, 
comprising ten out of the original thirteen, a 
moderate system of representative government, 
with a full acknowledgment of and acquies- 
cence in the due prerogatives of the Crown, 
subsisted from the period of their first 
charters of government, down to their sepa- 
ration from this country ; and at the same 
time, during the whole of that period, em- 
bracing, in most of the cases, upwards of a 

* § 114. 



ch. l] CONSTITUTIONS OF OTHER STATES. 1 5 

century, the habits and feelings engendered by 
such a form of government, and by the de- 
scent of property in more or less strict con- 
formity with the custom of the mother country, 
existed in full force in each of those colonies. 

The remaining three only of the thirteen 
original colonies — New Plymouth, Connecticut, 
and Rhode Island — were in their first or- 
ganisation thoroughly democratic. The first of 
these, the brave and hardy colonists before 
mentioned,* in number only forty-one adult 
males, who landed at Cape Cod in the depth 
of an American winter, drew up and signed 
before their landing, on the 11th November, 
1620, the memorable compact by which they 
established for themselves a simple form of go- 
vernment, " in its essence a pure democracy," 
and under which they proceeded to elect a go- 
vernor and other officers, and to enact laws. 
Connecticut, or rather the three towns that then 
formed the State, framed in 1638 its own con- 
stitution, by which it was provided that there 
should be two general assemblies annually, and 
* Page 7. 



1 6 CONSTITUTIONS OF NEW PLYMOUTH, [ch. i. 

that "there should be annually elected by the 
freemen, a governor and six assistants, and as 
many other officers as might be found requi- 
site. The towns were to send deputies to the 
general court, apportioned according to the 
number of freemen ; in which general court 
was vested the supreme power — legislative, ex- 
ecutive, and judicial. Rhode Island, settled 
by refugees from the religious tyranny of the 
Independents of Massachusetts, in 1636-8, 
established a form of government for them- 
selves, which was subsequently confirmed in 
the main by the Charter of Charles II. ; a 
charter whicb, with the characteristic indiffer- 
ence of the day, sanctioned the democratic 
principle of the election of the governor and 
all the other official persons. The executive 
power was vested in the governor, deputy- 
governor, and ten assistants ; the legislative in 
the general assembly. 

Although the New Plymouth colonists soon 
sought the aid of the authority of the Crown 
in support of their legislation, and " under the 
colour of delegated sovereignty" (a Charter 



ch. l] CONNECTICUT, AND EHODE ISLAND. 17 

from the Plymouth Company in England, 
which was never recognised hy the Crown), 
exercised all the powers of government until 
they were finally incorporated with the province 
of Massachusetts under the Charter of Wil- 
liam and Mary, in 1691 ; and although Con- 
necticut, " aware of the doubtful nature of its 
title," obtained in 1662 a Charter of govern- 
ment from Charles II., and Rhode Island, in 
the same manner sought the support of the 
Crown, as above adverted to ; the example of 
their bold and independent course, in found- 
ing for themselves a form of government rest- 
ing on the broadest principles of civil freedom, 
strengthened the spirit of liberty, which had 
already a legitimate field of action in all the 
other States. Rhode Island also "enjoys the 
honour of having been, if not the first, at 
least one of the earliest of the colonies, and 
indeed of modern States, in which liberty 
of conscience, and freedom of worship, were 
boldly proclaimed among its fundamental laws." 
The charter, on the petition of the inhabit- 
ants, for " full liberty in religious concern- 



18 CONSTITUTION OF EHODE ISLAND. [ch. i. 

ments," declares the royal will and pleasure, 
" that no person within the colony shall be any 
wise molested, punished, disquieted, or called 
in question, for any differences in opinion in 
matters of religion." 

It is remarkable, that in Rhode Island, 
notwithstanding the democratic principles on 
which its constitution was founded, the counter- 
balance of the law of entail was maintained 
with the greatest tenacity. Mr. Justice Story 
thus describes the general course of legislation 
on that subject : — 

" In respect to the descent of real estates, the canons of 
the common law were adopted, and the eldest son took the 
whole inheritance by primogeniture. This system was for 
a short period repealed by an Act (4 & 5. Geo. I., 1718), 
which divided the estate among all the children, giving 
the eldest son a double share. But the common law was 
soon afterwards (in 1728) reinstated by the public appro- 
bation, " as necessary to prevent the destruction of family 
estates,"* and so remained to regulate descents until a 
short period (1770) before the Revolution." f 

Connecticut also directed, that in cases of 
intestacy in respect to real estate, a double 

* § 101. t § 100. 



ch. l] DEDUCTIONS FKOM THE ABO YE PEINCIPLES. 19 

portion should go to the eldest son ;.* and the 
original New Plymouth colonists had no other 
"general hasis of their jurisprudence than the 
common law of England;" which, though 
varied to meet " their stern notions of the 
absolute and universal obligation of the Mo- 
saic institutions,"! was revived in full force 
when they submitted to come under the same 
law as Massachusetts. 

Reviewing, therefore, the principles of go- 
vernment on which the States of the Union 
had been founded, and were acting at the time 
of the Revolution, and considering how de- 
cidedly the custom of entail was supported by 
the legislation and by the prevailing sentiments 
of some of the largest and most important of 
them, was recognised in nearly all the rest, and 
was prevented by law in only one (Maryland), 
it can be no matter of surprise that one of the 
leading statesmen of the time, Mr. Jay, should, 
in a letter to Washington, of January J 9 1787> 
while their future Constitution was yet un- 
decided upon, advert to these facts, and urge 

* § 93. t § 55. 



20 DEDUCTIONS FROM THE ABOVE PRINCIPLES, [ch. i. 

them in argument, stating that the proposed 
government for the Union should be suited 
to their manners and circumstances, "which 
are not strictly democratical ;"* or that Mr. 
John Adams, in the same year, should follow 
a similar line of argument, founded on the 
fact of the number of persons of large and 
hereditary possessions then existing through- 
out all the thirteen States.! It places also 
in the strongest light the amount of the 
provocation, the glaring character of the 
injustice, the blind perseverance in error on 
the part of this country in opposition to its 
best and most eloquent statesmen, which must 
have been required to alienate sympathies 
which had for so many generations been so 
much in harmony with our own, and to provoke 
to resistance minds and hearts that knew 
nothing to love and venerate so much as the 
institutions and the glory of the country from 
which they sprung. All this must have been 

* Correspondence of the American Revolution, by Professor 
Jared Sparks. Boston, 1853. Vol. iv. p. 136. 

t Adams's Defence of the American Constitution, vol. iii. 
Letter 4. 



ch. i.] DEDUCTIONS FROM THE ABOVE PRINCIPLES. 21 

needed to cause an ear to be lent to those 
principles of government which emanated from 
the temporary disappointments and ill usage 
of Locke, and from the moral and social 
anarchy of the French school ; which were 
new to the experience of mankind ; which find 
no warrant in the best and greatest republics 
of antiquity ; and which, whatever may be 
their intrinsic merits, and their adaptation to 
the circumstances of so vast an extent of terri- 
tory as that occupied and waiting to be 
occupied by the United States, were not 
adopted (as will be hereafter shown) without 
the gravest misgivings on the part of some of 
the wisest men of the Revolution ; which are 
varied already in some important respects from 
what they sanctioned ; and are regarded with 
anxiety for the future by many of the most 
enlightened American citizens of the present, 
as they were of the past, generation. 



22 PROGRESS TOWARDS INDEPENDENCE. [ch. n. 



CHAPTER II. 

PROGRESS TOWARDS INDEPENDENCE. 

That communities, founded and nurtured as 
above described, should have combined to resist 
oppression, was no more than natural, and is a 
circumstance in the history of our race, at 
which, with Lord Chatham, "in the name of 
our common liberties and common character, 
we may be permitted to rejoice," however 
much we may still lament the errors and pre- 
judices which obscured the judgment of this 
country at that important period. 

The steps which gradually prepared the 
public mind in America for resistance, and 
marked their progress towards independence, 
require to be briefly adverted to, because they 



ch. il] PROGRESS TOWARDS INDEPENDENCE. 23 

take their origin from a time long prior to 
that of the ultimate cause of disagreement and 
separation. 

The favourite democratic theory of the 
foundation of the civil rights of the Ameri- 
can colonists is, according to Jefferson and 
others holding similar extreme opinions, that 
they brought with them " the rights of men," 
of " expatriated men." There is no need to 
repeat the well-known refutations of this as- 
sumption, and to show that there is no founda- 
tion in reason or history for any such abstract 
political rights ; and that no two men, gene- 
rally speaking, can be found to agree in de- 
fining what they mean, and how far they may 
be extended. It is sufficient for the present 
purpose to refer to the authority of the best 
American lawyers, who are agreed upon rest- 
ing their civil rights upon a much more de- 
finite and intelligible principle. Mr. Justice 
Story states the matter thus : — " The uni- 
versal principle (and the practice has con- 
formed to it) has been, that the common law 
(of England) is our birthright and inheritance, 



24 PROGRESS TOWARDS INDEPENDENCE. [ch. ii. 

and that our ancestors brought hither with 
them, on their emigration, all of it which was 
applicable to their situation."* This also was 
the opinion of the Congress, as laid down in 
their celebrated Declaration of Rights, of the 
14th of October, 1774. They unanimously 
resolved, "That the respective colonies are 
entitled to the common law of England," * # 
and that " their ancestors at the time of their 
emigration were entitled" (not to the " rights of 
men," but) " to all the rights, liberties, and 
immunities of free and natural-born subjects 
within the realm of England." And they 
further resolved, "that they were entitled to 
the benefit of such of the English statutes as 
existed at the time of their colonisation, and 
which they have by experience respectively 
found to be applicable to their several and 
local circumstances."* 

This being so, the American colonies very 
early assumed the right in their legislative 
assemblies to deal with both the common and 
statute law according as their circumstances 

* § 194, note. 



ch. il] PE0GEESS TOWAEDS INDEPENDENCE. 25 

required. The only limitation upon their 
legislative power was contained in an express 
clause of all their charters, to the effect that 
their laws should not be repugnant, but, as 
near as might be, agreeable to the laws and 
statutes of England. "A very liberal expo- 
sition of this clause seems, however," says 
Mr. Justice Story, " always to have prevailed, 
and to have been acquiesced in, if not adopted 
by the Crown."* The only part of the com- 
mon law which they were in practice restrained 
from altering was that which related to their 
allegiance, and of the statute law, those Acts 
of Parliament which particularly related to 
them, and by which they were expressly 
bound ; t and the interpretation given to this 
limitation confined it in theory, if not at first 
in practice, to matters of trade and commerce, 
and to regulations which bound them in a 
general system as integral parts of an empire. t 
These rights of independent action they 
steadily vindicated, and indeed extended, in 
their constant refusal to submit to taxation 

* § 187. t 7 & 8 Will. IIL c 22. § 9. t § 173. 

C 



26 PKOGKESS TOWAKDS INDEPENDENCE, [can. 

without their own consent. Some of the 
colonies very early asserted, and attempted 
to act upon, that principle ; as Massachusetts 
in 1640; and in 1651 and 1660 in refer- 
ence to the Navigation Acts. And al- 
though that State frequently in subsequent 
years, and as late as the year 17«57> acknow- 
ledged the general supremacy of Parliament,* 
she excepted the case of submitting to taxa- 
tion without her express consent. And even 
the southern States, which were in general 
most disposed to recognise the authority of the 
Crown and Parliament, " denied the right to. 
tax them internally to exist anywhere but in 
their respective legislatures." f 

The passing of the Stamp Act in 1765 
gave a further impulse to this feeling of inde- 
pendence, and strengthened the determination 
to assert it ; and although that Act was after- 
wards repealed, the subsequent attempt to 
raise a revenue on importations into the colo- 

* Story, § 188. 

+ §§ 189, 190. Declaration of the Congress of the Nine 
Colonies assembled at New York, October, 1765. 



ch.il] PROGRESS TOWARDS INDEPENDENCE. 27 

nies was as strenuously resisted as the former 
mode of taxation. In the glowing words of 
Burke, " They augured misgovernment at a 
distance, and snuffed the approach of tyranny 
in every tainted breeze." 

One of the features most noticeable at the 
commencement of this great struggle, is the 
moderation of the language and conduct of 
the colonists, which was as conspicuous as the 
firmness with which they persevered in vindi- 
cating their rights and liberties. This mode- 
ration in the midst of so great a crisis, which, 
if it had been met in a similar spirit by the 
people of England, would have altered the 
whole character of the course of events, is 
traceable to many circumstances of the poli- 
tical and social existence of the colonists, 
which ought not to be lost sight of even in 
the present day. As has been shown above, 
by far the greater number of the colonial con- 
stitutions owed their origin to no extreme poli- 
tical views and opinions ; but, in their mode- 
rate and temperate admixture of the several 
powers of government, were very similar to 

c 2 



28 PROGRESS TOWAKDS INDEPENDENCE, [can. 

the constitutional system which had heen gra- 
dually acquiring strength and consistence in 
the mother country. The prerogatives of the 
Crown were clearly defined and cheerfully re- 
cognised in the proprietary and charter go- 
vernments, and although attempts at aggres- 
sion on the part of the Crown in the provincial 
governments were met hy the strenuous and 
successful opposition of the provincial assem- 
blies, yet even in the latter governments most 
of the well-established and ordinary preroga- 
tives were exercised without dispute.* The 
representative system was organised on a mo- 
derate basis, and consisted for the most part 
of two portions ; one elected by the freehold- 
ers, the other, or the council to assist the 
governor, nominated by the Crown. The simi- 
larity of social institutions between the colo- 
nies and the mother country was kept up 
throughout the whole of the southern States, 
and in Rhode Island among the northern, by 
favouring the custom of primogeniture and the 
law of entails; and even in the rest of the 

* § 160. 



ch.il] PROGRESS TOWARDS INDEPENDENCE. 29 

northern States the principle was recognised 
to a certain extent, by assigning a double por- 
tion in case of intestacy to the eldest son. To 
this there was but one exception, that of the 
small State of Maryland. The long exist- 
ence, and the general predominance through- 
out the Union, at the time of the Revolution, 
of political and social institutions such as 
these, are facts which should not be for- 
gotten, inasmuch as they account for the very 
English tone of mind (if I may be allowed the 
expression) of most of the leading American 
statesmen of that day, which resulted also in 
part from an education and training, in most 
respects, entirely English. They account also 
for the elaborate system of checks against the 
encroachments of ultra-democracy introduced 
into the Constitution with so much care and 
caution by those who drew it up, and for the 
existence in it of such strong and carefully- 
guarded conservative elements, which appear 
to be commonly overlooked by modern politi- 
cians of the extreme school. They afford an 
explanation also of the phenomenon which 



30 PROGRESS TOWARDS INDEPENDENCE, [can. 

strikes a stranger in the United States even 
at this day, namely, that of the strongly aris- 
tocratic organisation and feeling of social life 
in that country ; wherein are seen ancient 
sympathies, strong and irrepressible associa- 
tions, instincts of cultivation and of nature, 
asserting their empire, and rising above the 
level attempted to be maintained by forced 
habits and a specious but unphilosophical 
theory* 



cam.] THE REVOLUTIONARY GOVERNMENT. 31 



CHAPTER III. 



THE REVOLUTIONARY GOVERNMENT.— THE CONFE- 
DERATION. 



Before examining the details of the Consti- 
tution, it is necessary to advert briefly to the 
course of events that immediately preceded it. 

All attempts at reconciliation having failed 
on both sides, the legislatures of some of the 
States, and conventions of the people in others, 
proceeded to appoint delegates, who assembled 
on the 4th September, 1774, and formed the 
first general and national Government, com- 
monly known, from its origin, as " the Revo- 
lutionary Government." 

Having adopted a Declaration of Rights, 
passed Acts forbidding all commercial rela- 
tions between themselves and Great Britain, 
authorised the raising of troops, and appointed 



32 THE REVOLUTIONARY GOVERNMENT, [ch. m. 

General Washington as their commander-in- 
chief, they embarked upon the great struggle, 
and finally, on the celebrated 4th of July, 
1776? published the Declaration of Indepen- 
dence. 

The powers of the Revolutionary Govern- 
ment being vague and doubtful, discussions 
arose and were continued during the next few 
years among the several States, and it was not 
until the 1st of March, 1781, that the whole 
of the States assented to the " Articles of Con- 
federation," prepared and digested by a Com- 
mittee of Congress. On that date the final 
ratification took place, and the Government of 
the Confederation was announced and recog- 
nised. 

Still, however, the defects in the political 
arrangements then agreed to were many and 
patent. " To form a permanent union," re- 
marked the Committee above referred to, " ac- 
commodated to the opinions and wishes of the 
delegates of so many States, differing in habits, 
produce, commerce, and internal police, was 
found to be a work which nothing but time 



ch. hi.] THE CONFEDERATION. 33 

and reflection, conspiring with a disposition to 
conciliate, could mature and accomplish." It 
was not a matter capable of being " struck 
out at a heat," and required the patience and 
the wisdom of men accustomed to look at all 
the sides of great and complicated questions, 
and the experience of years to enable them to 
gather new counsel from novel circumstances. 
" Although," says one of the able men who 
took a leading part in those proceedings, Dr. 
Rush, " we understood perfectly the princi- 
ples of liberty, yet most of us were ignorant 
of the forms and combinations of republics."* 
It need not, therefore, be a matter of surprise 
that inexperience on the one hand, and the 
jealousies of individual States on the other, 
should have combined to render the powers 
entrusted to the Confederation imperfect, and 
to hamper its action to so great a degree, as 
to cause it to be little more than a govern- 
ment in name only. It had no authority to 
levy taxes, no power to enforce obedience, no 
means of regulating foreign or domestic com- 

* Story, § 244, note. 

c 3 



34 THE KEVOLTJTIONAKY GOVEKNMENT. [ch. in. 

merce, no national courts. It was invested 
with bat " a delusive and empty sovereignty."* 
It, indeed, finished the war, and signed the 
treaty, by which the independence of the re- 
volted colonies was acknowledged ; but it could 
not pay its debts, or even its current ex- 
penses. It could only incur expenses, and 
call upon the States to provide the means of 
payment. But the power to levy the sums de- 
manded, had been jealously retained by the 
several States. The extent to which, as late 
as the spring of 1787> the different States had 
complied with or refused the requisitions of 
Congress, is thus given by Mr. Justice Story, 
on the authority of a member of the New 
York Legislature ; — " During the last fiYe 
years, New Hampshire, North Carolina, South 
Carolina, and Georgia had paid nothing ; 
Connecticut and Delaware about one-third ; 
Massachusetts, Rhode Island, and Maryland, 
about one-half ; Virginia, three-fifths ; Penn- 
sylvania, nearly the whole \ and New York, 
more than her quota." f The refusals or de< 

* § 245. t § 259, note. 



ch. m.] THE CONFEDERATION. 35 

lays were justified under various pretexts ; 
some plausible, as being founded on the alleged 
injustice and inequality of the provisions of 
the Articles of Confederation, as well as the 
importance of its omissions. But the leading 
statesmen of the day were unceasing in their 
calls upon the different States, to satisfy first 
the just demands upon them, and to sustain 
the credit and honour of the Confederation, 
and then to discuss their individual claims and 
grievances. " Many solemn and affecting ap- 
peals" were made to them by Congress, and 
also by individuals. Mr. Jay, writing to Wash- 
ington, on the 27th of January, 1786, says, in 
a letter full of apprehensions for the future, — 
" There is doubtless much reason to think 
and to say that we are woefully, and in many 
instances wickedly misled. Private rage for 
property suppresses public considerations, and 
personal rather than national interests have 
become the great objects of attention."* Wash- 
ington had before expressed his apprehensions 

* Correspondence of the American Revolution, by Professor 
Jared Sparks, Boston, 1853, vol. iv. p. 136. 



36 THE CONFEDERATION. [ch. m. 

that the course of things was tending to 
"anarchy and confusion," and that so many 
sacrifices might prove to have been made in 
vain.* " The domestic debt sunk down to about 
one-tenth of its nominal value." t Serious dis- 
sensions arose among the States themselves, 
" and were fostered to a high degree, so as to 
threaten at once the peace and safety of the 
Union." t 

* § 256, Marshall's " Life of Washington," vol. v. p. 47. 
t § 257. % § 260, 



ch. iv.] THE CONSTITUTION. 37 



CHAPTER IV. 

THE CONSTITUTION. 

It was, therefore, not until after thirteen years 
of trial and of struggle, of tentative efforts in 
the new career of self-government, and failures 
in the difficult task of adjusting conflicting 
powers and reconciling adverse interests, that 
on the 17th of September, 17§7> the Conven- 
tion, to which the whole subject had been re- 
ferred, finally adopted the plan of the present 
Constitution. This was again referred by 
Congress to a " convention of delegates, chosen 
in each State by the people thereof;" and 
the proposed plan having been ratified by 
eleven out of the thirteen States, Congress 
appointed the 4th of March, 1789, " for the 
first meeting under the new Constitution." On 
the 6th of April Washington was elected 



38 THE CONSTITUTION. [oh. iv. 

president, " and on the 30th he was sworn 
into office, and the Government went into full 
operation in all its departments."* 

But the Constitution had not come into ex- 
istence without encountering many difficulties 
and much violent opposition. It was carried 
in six out of the thirteen States by only small 
majorities, and in three out of those six, Mas- 
sachusetts, Pennsylvania, and Virginia, " by 
little more than a preponderating vote."f One 
party throughout the Union was in favour of 
a constitution embodying the powers proposed, 
because they were anxious for the " exact ob- 
servance of public and private engagements ;" 
another strong and active party was violently 
hostile to it, because disposed to evade both.t 
It was stigmatised as unequal, unjust, and op- 
pressive ; by some of the large States from 
fear of losing their importance ; by some of 
the smaller from apprehension of being over- 

* North Carolina adopted the Constitution in November, 
1789, and Rhode Island in May, 1790. " Thus all the thirteen 
original States became parties to the new Government," § 278. 
t § 281. t § 286. 



oh. iv.] THE CONSTITUTION. 39 

borne. It was, however, finally acquiesced in 
as " a system of compromise and conciliation," 
in which the strictness of abstract theory was 
made to yield to a just consideration for par- 
ticular interests and even prejudices, and some 
"inequality of benefit" was submitted to "for 
the common good." # 

It has been a matter of much discussion by 
the statesmen and public writers of the various 
parties in the United States, whether the Con- 
stitution is to be considered as a treaty between 
independent States, or a federal, or a social 
compact, or both ? And the inclination of the 
public mind on this question has been, from 
time to time, a subject of great importance, in 
reference to the conflicting interests and opi- 
nions of the North and the South, on vital 
objects of public policy. If, as has been ar- 
gued, it is a treaty or a compact only, then 
any State might withdraw from the confedera- 
tion at pleasure and dissolve the connection ; 
and thus the Government of the Union would 

* § 296. 



40 THE CONSTITUTION. [ch. rv. 

be reduced to " a mere confederation during 
pleasure." * 

The determination of this point involves 
the whole question of the foundation of civil 
government. 

In arguing it, Mr. Justice Story adopts the 
limitations placed upon the doctrines of Locke 
by Paley and Burke, and by able writers also 
of his own country. 

" If," he argues, " the doctrine of Locke, 
that all civil government is founded upon con- 
sent, be in a general sense true, it is neverthe- 
less to be taken with many limitations and qua- 
lifications," because a State, however organised, 
" embraces many persons in it who have never 
assented to its form of government ; and many 
who are deemed incapable of such assent, and 
yet who are held bound by its fundamental 
institutions and laws. Infants, minors, mar- 
ried women, persons insane, and many others, 
are deemed subjects of a country, and bound 
by its laws, although they have never assented 

* § 328. 



ch. iv.] THE CONSTITUTION. 41 

thereto, and may by those very laws be disabled 
from such an act." He adds, that neither the 
Constitutions of the State Governments, nor 
that of the United States, can be said to be 
founded upon the consent of the whole people. 
Nor were they founded upon the consent of 
even the whole of that portion of the people 
who were by the law qualified voters in each 
case, but only on that of the majority of such 
qualified voters. He affirms * that " there is 
not, probably, a single State in the Union, 
whose Constitution has not been adopted 
against the opinions and wishes of a large mi- 
nority, even of the qualified voters ; and it is 
notorious that some of them have been adopted 
by a small majority of votes;" and "in re- 
spect to the American Revolution itself, it is 
notorious that it was brought about against the 
wishes and resistance of a formidable minority 
of the people."f Who are or are not to be 
deemed qualified voters is a matter, in all the 
States of the Union, resting on no doctrine of 
abstract right, but held to be within the dis- 

* §§ 308-321. f §§ 329, 330. 



42 THE CONSTITUTION. [ch. iv. 

cretion and competence of the actual possessors 
of the franchise, acting under a sense of their 
responsibility as trustees for the public good. 
But the decision of these qualified voters, 
through their representatives, having been 
duly expressed, the Constitution passed from 
the nature of a compact into that of a law ; it 
became " a fundamental law, of absolute para- 
mount obligation," not to be dissolved (in the 
words of Burke), except under the pressure of 
supreme and inevitable necessity, and by the 
deliberate choice and determination of the 
same power that enacted it. # The language of 
the Constitution itself, in its sixth article, de- 
clares it to be the " supreme law of the land ; " 
and appoints as its arbiter and interpreter, not 
the varying wills or occasional interests of the 
individual States, but those high judicial func- 
tionaries whom, in its third article, it expressly 
designates for that purpose. 

And this last-mentioned peculiarity in the 
Constitution of the United States is one which 
ought constantly to be borne in mind in consi- 

* §5 338-372. ■ 



ch. iv.] THE CONSTITUTION. 43 

dering it, or in instituting comparisons between 
it and other systems of government. Ac- 
cording to our own law and practice, an Act 
of Parliament once passed becomes part and 
parcel of the law of the land. Not so always 
or necessarily an Act of the Congress of the 
United States. If that Act should, in the 
opinion of the judges of the Supreme Court, 
be contrary to the written words of the Con- 
stitution, it is, ipso facto, void and of no effect. 
" The Constitution" is the supreme power 
(not the united act of the legislative and exe- 
cutive power of the State in each particular 
case, as with us); " the judicial power extends 
to all cases of law and equity under it ; and 
the Courts of the United States are, and in 
the last resort, the Supreme Court of the 
United States is, vested with this judicial 
power."* The judgments of the Courts of 
the United States upon constitutional questions 
are " of paramount and absolute obligation" 
throughout all the States ; are " conclusive 
and binding upon the citizens at large ; " and 
* § 376. 



44 THE CONSTITUTION. [ch. iv. 

if any attempt be made to alter the written 
words of the Constitution, such attempt can 
only be successful by the concurrence of two- 
thirds of both houses of Congress, or of the 
legislatures of two-thirds of the States, in pro- 
posing, and of the legislatures of three-fourths 
of the States in ratifying, the change.* 

Not only has the Supreme Court of the 
United States the power of determining whe- 
ther " the laws of Congress, or the acts of its 
president, are contrary to, or warranted by, 
the Constitution," but it has also constantly ex- 
ercised this power of final interpretation over 
the acts of the legislatures of the individual 
States. And in so doing it has been sustained 
by public opinion, which has in all cases deter- 
mined that such power resides in the Supreme 
Court under the terms of the Constitution. 
The question has been frequently raised ; by 
Virginia in 1798, by Kentucky in 1800, and 
by other States at different times ; " but," 
says Mr. Justice Story, " it may be asserted 
with entire confidence, that for forty years, 

* Article 5 of the Constitution. 



ch.iv.] THE CONSTITUTION. 45 

three-fourths of all the States composing the 
Union have expressly assented to, or silently 
approved, this construction of the Constitution, 
and have resisted every effort to restrict or 
alter it."* 

The reason why this great power should he 
placed in the judges of the Supreme Court, 
and not elsewhere, is stated hy one of the 
greatest legal authorities of the United States, 
the late Chief-Justice Marshall, (in an able 
judgment upon this important question, in the 
case of Cohens v. Virginia, given in vol. vi. of 
Wheatstone's Reports, pages 384 to 390 ; Story, 
§ 392, note,) to have been, that the judges 
of the Supreme Court are, by the Consti- 
tution, appointed " during good behaviour," 
in other words, for life ; whereas the judges in 
many of the States are appointed for short 
periods, " and are dependent for office and 
salary on the will of the legislatures ; and the 
Constitution of the United States furnishes no 
security against the universal adoption of that 
principle." And when " we observe the im- 

* § 391. 



46 THE CONSTITUTION. [ch. iv. 

portance which that Constitution attaches to 
the independence of judges, we are the less 
inclined to suppose that it can have intended 
to leave these constitutional questions to tri- 
bunals where this independence may not exist;" 
more especially as the questions which had 
arisen between the States and the general 
Government had been such as these, namely, 
whether certain just debts contracted by some 
of the States should be paid by them, or cer- 
tain taxes, imposed by Congress, collected ; 
questions which, if determined in the negative 
by the imagined self-interest of the individual 
legislatures, could hardly be expected to be 
otherwise determined by judges appointed by 
those legislatures, and depending upon them 
for their tenure of office. 

The State legislatures have no such check 
upon them as is afforded by the submission of 
their Acts to an independent tribunal, which 
can determine, if the question should at any 
time be raised, whether they have or have not 
exceeded their lawful powers. Consequently, 
"violations of the State Constitutions are more 



ch. iv.] THE CONSTITUTION. 47 

likely to remain unnoticed and unregarded." 
The legislatures of the individual States may, 
by a vote determining upon a constitutional 
amendment, " change, with few limitations, the 
whole structure and power of Government, and 
thus legalize any present excess of power." * 
Many of them, as above mentioned, have ac- 
tually exercised such power, against the wishes 
of large minorities.! 

This power of immediate action upon the 
legislatures of the several States, by those in- 
vested with the franchise, is in stricter corre- 
spondence with the ultra-democratic ideas and 
principles existing in Europe. But it has no 
place in the Constitution of the United States, 
which is the ideal commonly referred to by the 
advocates of republican government, because it 
is the one more widely known, and occupies 
the prominent place in the public eye when 
turned towards that country. The principles 
of the State governments, and their particular 
arrangements in regard to the amount and 
distribution of popular power, are less known 

* § 395. t Page 4L 



48 THE CONSTITUTION. [oh. iv. 

because less conspicuous ; and their practice 
not such as, if more widely known, would be 
likely to recommend them as models of purity 
of administration, or as considerate deposi- 
tories of supreme power, or always as strict 
assertors of law and justice. 



ch. v.] THE PREAMBLE. 49 



CHAPTER V. 



THE PREAMBLE. 



The preamble of the Constitution declares, 
in substance, the importance, the advantages, 
and in regard to many particulars, the abso- 
lute necessity, of a national Government. 

These positions are so indisputable that 
there will be no need to follow the commentary 
upon each separate statement of the preamble 
itself. They command at once our assent, as 
they declare the aim of the national Govern- 
ment of the United States to be in no re- 
spect different from what we should assert of 
our own. 

There are two points, however, which Mr. 
Justice Story adverts to, as having been espe- 
cially designed to be established by the framers 

D 



50 THE PKEAMBLE. [ch. v. 

of the Constitution, which it will be instructive 
to notice. 

The preamble recites that the Constitution 
was framed in order, among other things, to 
" establish justice ;" and the learned commen- 
tator's remarks upon that clause* show, in re- 
lation to one great branch of justice, namely, 
the payment of debts, how great was the need 
of some over-ruling authority to compel the in- 
dividual States to the observance of good faith 
in those matters, both towards each other and to 
individuals. He says that, " besides the debts 
due to foreigners, the public debt of the United 
States was left utterly unprovided for ; and the 
officers and soldiers of the Revolution, who had 
achieved our independence, were, as we have 
had occasion to notice, suffered to languish in 
want, and their just demands evaded or passed 
by with indifference." " Laws were constantly 
made by the State legislatures, violating, with 
more or less degrees of aggravation, the sacred- 
ness of private contracts ; laws compelling the 
receipt of a depreciated and depreciating paper 

* §§ 485-6. 



ch.v.] THE PREAMBLE. 51 

currency* in payment of debts, were generally, 
if not universally, prevalent ; * # laws autho- 
rising the delivery of any sort of property, 
however unproductive or undesirable, in pay- 
ment of debts, upon an arbitrary or friendly 
appraisement," and several other laws of the 
same nature. " In the rear of these came the 
systems of general insolvent laws, some of 
which were of a permanent nature," and 
others " had so few guards against frauds of 
every kind by the debtor, that in practice they 
amounted to an absolute discharge of any 
debt, without anything more than a nominal 
dividend ; and sometimes even that vain 
mockery was dispensed with."* "The local 
tribunals were obliged to obey the legislative 
will ; and in the few instances in which it was 
resisted, the independence of the judges was 
sacrificed to the temper of the times."f These 
descriptions, and much more to the same effect, 
apply to the period of the Revolutionary Govern- 
ment, and the confederation, between 1774 and 
1789. The power to sanction such departures 

* § 487. t § 487. 

D 2 



52 THE PREAMBLE. [ch. v. 

from honesty and justice has, by the Constitu- 
tion of the United States, been taken away 
from the legislatures of the individual States, 
in some of the above particulars. The events, 
however, of only a few years ago, in regard to 
the " repudiation " of their debts by many of 
the States, show that there is no security 
against the recurrence of such aberrations 
from principle, among communities where the 
numerical majority has the controlling power, 
and is able, under the pressure of some tem- 
porary suffering, or some excited feeling, to 
overbear all that is honourable and enlightened 
among their fellow-citizens. A notorious in- 
stance of the inability of the legislature and of 
the executive of a State to cause the law to be 
enforced when resisted by popular clamour, 
has, for the last twenty-seven years, continued 
to be exhibited by the great and populous 
State of New York, almost within sight of 
the Houses of Legislature, in the case of 
the forcible occupation of the large estates 
of a portion of the Van Ransalaer family by 
the tenantry, who refuse either to pay rent 



ch.v.] THE PREAMBLE. 53 

or to give up their occupation. They are suffi- 
ciently numerous to have been able to elect 
the local officers, without whose aid the law 
cannot be enforced. Those newspapers of the 
State which possess any sense of the public 
interest and dignity, frequently call for either 
the vindication of the law by an adequate em- 
ployment of the public force, or a satisfactory 
compromise between the parties ; but hitherto 
without effect; and this great scandal still 
exhibits, in the twenty-seventh year of its exist- 
ence, one of those " defects of justice" which 
the Constitution of the United States has no 
power to interfere with, but which could never 
occur under institutions which give due place 
and weight to the portion of the community 
incapable of submitting to such a stain. # 

Another object of the United States Con- 
stitution, was, according to the preamble, " to 

* A decision has recently been given in the Supreme Court 
of the State of New York, adverse to the claims of the Van 
Ransalaer family; but its justice, after so long a period of 
years, is much disputed ; and the present determination of the 
point does not excuse the flagrant and successful resistance to 
the law as it stood. 



54 THE PREAMBLE. [ch. v. 

insure domestic tranquillity," or in the words 
of the "Federalist" upon that portion of 
the Constitution, "to guard one part of so- 
ciety against the injustice of the other part," 
if their peace, safety, or interests should be 
threatened by an adverse party or faction. 
The danger of the whole power of the State 
falling into the hands of a faction is one to 
which pure republican governments are espe- 
cially exposed. " If a majority be united by 
a common interest, the rights of a minority 
will be insecure."* It was a main object 
with the framers of the Constitution to devise 
means for protecting the rights of minorities ; 
or rather, what is more effectual, for en- 
abling minorities to protect themselves. These 
means, which are comparatively weak in the 
more purely republican governments of the 
individual States, are, in the " compound re- 
public" of the United States, to use the ex- 
pression of one of the able writers of the 
" Federalist," sought for, by placing power 
in the hands of so many parts, interests, 

* Federalist, No. 10. 



ch. v.] THE PREAMBLE. 55 

and classes of citizens, "that the rights of 
individuals, or of the minority, will be in 
little danger from interested combinations of 
the majority." This is precisely the same 
principle which has always been so conspicu- 
ous in the British Constitution, and which 
has always insured a full hearing to every 
interest however small, and however appa- 
rently at variance, in its instincts and sym- 
pathies, with the great majority of influen- 
tial opinions in the State. It is this which 
justly gives it its air of true and liberal free- 
dom ; which makes every man who lives un- 
der it, feel that he possesses in himself, and 
in those united with him, a guarantee against 
oppression. On this point there is no differ- 
ence of principle between our Constitution and 
that of the United States. The difference is 
only in the modes of attaining the same end. 
We look to the independent powers of our 
ancient or modern corporations, to the distinct 
and peculiar powers and privileges of our 
church and universities, to our hereditary and 
independent House of Lords, to the fair re- 



56 THE PEE AMBLE. [oh. v. 

presentation of all classes and interests in our 
House of Commons by such a distribution of 
the franchise as will enable representatives of 
all classes to obtain a place there. The Consti- 
tution of the United States looks to the "great 
variety of interests, parties, and sects which 
it embraces," as the security against a coali- 
tion of a majority to overbear the wills, and 
affect the interests of a minority, by sudden 
and hasty acts of legislation. Which of the 
two best answers its purpose, we need not at 
this moment stop to argue. It will be entered 
upon elsewhere. No human institutions are 
perfect ; but in intention and principle the 
Constitutions of Great Britain and of the 
United States are on this important point the 
same. Both seek to break the force of ma- 
jorities, and, as it were, to stay their hand, 
until the majorities themselves have had time 
for mature reflection, and until minorities 
have been able to exercise the effort, always 
difficult even to the calmest minds, of looking 
at questions that threaten their interests or 
thwart their opinions, from the points of view 



ch. v.] THE PEEAMBLE. 57 

that lead to the conclusions which are prevail- 
ing against them. It is thus only that mino- 
rities can have time to prepare for, and adjust 
themselves to, the coming change. 

However temperate and forbearing in prin- 
ciple and intention, and therefore similar to 
our own, the Constitution of the United States 
may be in those particulars, the constitutions 
of the individual States partake very little of 
that spirit, and the tendency of the whole of 
them has been, from the period of the Revo- 
lution to the present day, to weaken or do 
away with any checks or impediments that 
existed in their original forms of government, 
upon the immediate action of the numerical 
majority of voters, and thus to assimilate them- 
selves more nearly to pure democracies. The 
particulars of these changes will be found in a 
future page. 



D 3 



58 THE LEGISLATIVE, EXECUTIVE, [ch. vi. 



CHAPTER VI. 



NECESSITY OF SEPARATING THE LEGISLATIVE, EXE- 
CUTIVE, AND JUDICIAL POWERS. 



The necessity of the separation of the three 
great powers of a State — the legislative, the 
executive, and the judicial, is a truth so ele- 
mentary, that it requires in this country no 
argument to enforce it. " It is," says Paley, 
" the first maxim of a free State ;" and Mon- 
tesquieu had before observed, that there can 
be no liberty where those three powers are not 
kept distinct.* 

Accordingly, Mr. Justice Story remarks, 
that "it is no small commendation of the Con- 
stitution of the United States, that instead of 
adopting a new theory, it placed this practical 
truth as the basis of its organisation." t 

* Esprit des Lois, Liv. xi. c. 6. t § 524. 



ch. vi.] AND JUDICIAL POWEKS. 59 

The judicious blending of these powers 
to a certain limited extent, as noticed by 
Blackstone, does not militate against, but 
strengthens this principle, by promoting unity 
of action between the whole, without infring- 
ing upon the independence of either. Thus the 
sovereign of this country " is a part of the Par- 
liament ;" the Crown appoints the judges, but 
cannot remove them ; the House of Lords pos- 
sesses both legislative and judicial powers ; the 
House of Commons exercises the power of im- 
peachment; and the judges occasionally " assist 
in the deliberations of the House of Lords by 
giving their opinion upon matters of law re- 
ferred to them." This same blending of these 
three powers exists also in a similarly limited 
and useful manner in the Constitution of> the 
United States ; and it is a point which fyas 
been defended by all the ability of the authors 
of the " Federalist," and the framers of the 
Constitution. In the constitutions, however, 
of several of the States, a less regard is paid 
to this vital principle of liberty ; and in 
many of them, it has been entirely aban- 



60 THE LEGISLATIVE, EXECUTIVE, [ch. vi. 

doned ; both the appointment and the payment 
of the judges having in some of the States 
been assumed by the legislature, while in 
others the judges have to submit to the ordeal 
of a popular election once every few years. 

Impressed with the conviction that the in- 
dependence of the judiciary is the great gua- 
rantee for the maintenance of the Constitution 
of the United States, and aware of the tendencies 
of the public mind in many of the individual 
States to overrule that principle, Mr. Justice 
Story, following the authors of the "Federalist," 
labours to remind his countrvmen of the neces- 
sity of maintaining " some practical means" 
for the security of the judiciary " against the 
meditated or occasional invasions" of either of 
the other two powers. He shows that, of the 
three powers, the judiciary " is incomparably 
the weakest,"* and that the danger most im- 
pending over their country was that of the 
usurpation by the legislative bodies of all the 
powers of the State. "In a representative 
republic, where the executive magistracy is 

* § 531. 



ch.vl] AND JUDICIAL POWEKS. 61 

carefully limited, both in the extent and du- 
ration of its power," and where the legislative 
power is exercised by an assembly responsive 
to the passions of the multitude, and capable 
of giving effect to those passions, " it is easy 
to see that the tendency to usurpation is, if 
not constant, at least probable ; and that it is 
against the enterprising ambition of this (the 
legislative) department, that the people may 
well indulge all their jealousy, and exhaust all 
their precautions."* He adds, that under their 
forms of government, the legislative body 

" Has the pride as well as the strength of numbers. It 
is easily moved, and steadily moved, by the strong im- 
pulses of popular feeling and popular odium. It obeys, 
without reluctance, the wishes and the will of the majority 
for the time being. The path to public favour lies open 
by such obedience, and it finds not only support but im- 
punity, in whatever measures the majority advises, even 
though they transcend the constitutional limits. It has 
no motive, therefore, to be jealous, or scrupulous in its 
own use of power; and it finds its ambition stimulated, 
and its arm strengthened, by the countenance and the cou- 
rage of numbers. These views are not alone those of 
men who look with apprehension upon the fate of repub- 
lics; but they are also freely admitted by some of the 

* § 533. 



62 THE LEGISLATIVE, EXECUTIVE, [ch. vi. 

strongest advocates for popular rights and the permanency 
of republican institutions. Our domestic history furnishes 
abundant examples to verify these suggestions."* 

He then asks, what is the remedy ? Does it 
lie in frequent appeals to the people, in the 
hope of their speedily correcting their own 
errors ? He answers, " But if these be fre- 
quent, it will have a tendency to lessen that 
respect for, and confidence in, the stability of 
our institutions, which is so essential to their 
salutary influence."! Neither is it probable 
that they would be successful ; for " temporary 
feelings and excitements, popular prejudices, 
an ardent love of theory, an enthusiastic tem- 
perament, inexperience, ignorance, as well as 
preconceived opinions, operate wonderfully to 
blind the judgment and seduce the understand- 

" A lucky hit, or a strong figure, has not unfrequently 
overturned the best- reasoned plan. Thus, Dr. Franklin's 
remark, that a legislature with two branches, was a waggon 
drawn by a horse before and a horse behind, in opposite 
directions, is understood to have been decisive in inducing 

* § 535. t § 537. 



ch. vl] AND JUDICIAL POWERS. 63 

Pennsylvania, in her original constitution, to invest all the 
legislative power in a single body. In her present consti- 
tution that error has been fortunately corrected."* 

But such appeals to the people, whether 
frequent or at distant intervals, would be in- 
effectual, inasmuch as, " the tendency of re- 
publican governments being to the aggrandise- 
ment of the legislature at the expense of the 
other departments," and the members of the 
legislature being numerous and influential, 
dwelling among the people, and connected with 
them by various ties of confidence and interest, 
the latter would plead their cause before the 
people at a great advantage, as compared with 
the judiciary or the executive, whose rights 
they may have invaded, and could scarcely 
fail to be sustained by the public voice. He 
concludes that the only effectual barrier against 
the inroads of the legislature upon the other 
departments of the Government, is to be 
looked for " in some contrivances in the in- 
terior structure of the Government itself," 
whereby "the constitutional independence of 

* § 537. 



64 THE LEGISLATIVE, EXECUTIVE, [ch. vl 

each may be fully provided for." * * # # 
"Each should have its independence secured 
beyond the power of being taken away by either, 
or by both the others," by such a "partial par- 
ticipation of each in the powers of the other," 
and such a system " of checks and balances," 
as we in England happily possess in our own 
Constitution, and which that of the United 
States has sought to follow as far as circum- 
stances permitted. 

The independence of the judicial depart- 
ment, " which must always be the weakest," 
can only be preserved, Mr. Justice Story rightly 
insists, by the legislature abstaining from 
exercising any power over the salaries of the 
judges, when they have been once appointed 
by the executive. This forbearance has been 
departed from in many of the individual States. 
Not only, as before-mentioned, have the salaries 
of the judges been, in many instances, made 
subject to the annual vote of the legislature, 
but in others the judges themselves are ap- 
pointed, not by the executive, but by the 
electors, and for short periods of years. 



ch. vi.] AND JUDICIAL PC- WEES. 65 

In anticipation of the possibility of some 
future attack upon the independence of the 
judges of the Supreme Court of the United 
States, who are appointed by the Constitution 
as its defenders in the last resort, Mr. Justice 
Story urges very forcibly the necessity of those 
" additional guards," which can alone " protect 
this department from the absolute dominion 
of the others." Yet, he adds, "rarely have 
these guards been applied ; and every attempt 
to introduce them has been resisted with a 
pertinacity which demonstrates how slow popu- 
lar leaders are to introduce checks upon their 
own power ; and how slow the people are to 
believe that the judiciary is the real bulwark 
of their liberties."* 

* § 540. 



Q6 ■ THE SENATE.^ [ch. vii. 



CHAPTER VII. 

THE SENATE. 

The policy of dividing the legislature into 
two distinct branches, is one upon which there 
can be no difference of opinion among well- 
informed persons, either in this country or in 
the United States, in the present day. It was 
not so, however, in the latter country, at the 
time of the Revolution ; and the question of 
the propriety of establishing a second legis- 
lative chamber, there termed the Senate, was 
not determined without a careful review of all 
the arguments in support of such a measure. 

A very brief recapitulation of them is ne- 
cessary, as an introduction to what follows on 
the subject of the Senate itself. 

The value of an Upper House or Senate 
was insisted on " as a security against hasty, 



ch. vil] THE SENATE. 67 

rash, and dangerous legislation ; allowing 
errors and mistakes to be corrected, before 
they have produced public mischief."* The 
second chamber "being organised upon dif- 
ferent principles, and actuated by different 
motives," will operate as " a preventive against 
attempts to carry into effect private, personal, 
or party objects, not connected with the com- 
mon good." It secures " an independent re- 
view" of measures that are to act upon the 
whole community, and which may affect in- 
terests " of vast difficulty and complexity," 
and therefore " require nice adjustments and 
comprehensive enactments." It is of great 
importance that such proposed Acts of legis- 
lation should be reviewed by different minds, 
"acting under different and sometimes oppo- 
site opinions and feelings." 

" Whatever, therefore, naturally and necessarily awakens 
doubt, solicits caution, attracts inquiry, or stimulates vigi- 
lance and industry, is of value to aid us against precipi- 
tancy in framing or altering laws, as well as against yield- 
ing to the suggestions of indolence, the selfish projects of 
ambition, or the cunning devices of corrupt and hollow 
demagogues."! 

* Story, § 555. t § 557. 



68 THE SENATE. [ch. vii. 

In the next place, there can scarcely be any 
other adequate security against encroachments 
upon the constitutional rights and liberties of 
the people. Algernon Sidney has said " that 
all governments have a tendency to arbitrary 
power, but those that are well constituted 
place this power so as it may be beneficial to 
the people, and set such rules as are hardly to be 
transgressed/'* The legislative power derives 
this constant tendency to overleap its proper 
boundaries, from passion, from ambition, from 
inadvertence, from the prevalence of faction, 
or from the overwhelming influence of private 
interests. Under such circumstances, the only 
effectual barrier against oppression, accidental 
or intentional, is to separate its operations, to 
balance interest against interest, ambition 
against ambition, the opinions and sympathies 
of one body against the opinions and sympa- 
thies of the other. " And it is obvious," says 
Mr. Justice Story, " that the more various the 
elements which enter into the actual composi- 
tion of each body, the greater the security 
will be."f 

* Discourse on Government, c. 3. § 45. t § 558. 



ch. vil] THE SENATE. 69 

It will be observed that the policy of making 
an Upper House, or Senate, a part of the 
Constitution of the United States, is justified 
by precisely the same arguments that are used 
in this country in favour of the existence of 
the House of Lords as an integral part of our 
Constitution. And the learned commentator's 
argument, " that the more various the ele- 
ments that enter into the composition of each 
body, the greater the security will be," is much 
more applicable to our two Houses of Parlia- 
ment than to the Senate and House of Repre- 
sentatives of the United States. 

The propriety of having an Upper House 
having been determined upon, the following 
more detailed reasons, stated as having in- 
fluenced the framers of the Constitution in 
giving to the Senate its actual structure, place 
in a stronger light the efforts made by them 
to assimilate that body to the House of Lords, 
in its character and functions, to as great an 
extent as was compatible with institutions 
from which the hereditary principle was ex- 
cluded. 



70 THE SENATE. [ch. vii. 

In the first place, as a basis for the argu- 
ment on which its present structure rests, 
it is to be assumed as granted that a second 
branch or Upper House of legislature will be 
" a salutary check " upon the Lower. And as 
this check will be effectual " in proportion to 
the dissimilarity in the genius of the two 
bodies, it must be politic to distinguish them 
by every circumstance " consistent with the 
principles on which the Government is 
founded.* 

Secondly, the necessity of a Senate being 
indicated " by the propensity of all single and 
numerous assemblies to yield to the impulse of 
sudden and violent passions, and to be seduced 
by factious leaders into intemperate and perni- 
cious resolutions," examples of which " might 
be cited without number from proceedings in 
the United States, as well as from the history 
of other nations," it was essential " that a 
body to correct that infirmity should be less 
numerous, and should possess a due degree of 
firmness, and a proper tenure of office."f 

* § 562. t § 563. 



ch. yn.] THE SENATE. 71 

Thirdly, " another defect to be supplied by 
a Senate, was the want of a due acquaintance" 
with the objects and principles of legislation, 
which was often manifested by the Lower 
Houses of the American legislatures ; leading 
to the adoption of unwise and ill-considered 
measures which frequently required to be re- 
pealed, explained, or amended.* 

Fourthly, " such a body would prevent too 
great a mutability in the public councils, aris- 
ing from a rapid succession of new members." 
" Such instability has a tendency to diminish 
respect and confidence," " to damp the ardour 
of enterprise, to diminish the security of pro- 
perty, and to impair the reverence and attach- 
ment which are indispensable to the permanence 
of every political institution"! 

Fifthly, a Senate would be greatly instru- 
mental " in keeping alive a due sense of 
national character," by a scrupulous and 
uniform adherence to just principles, " which 
it is difficult to impress upon a single body 
that is numerous and changeable."! 

Sixthly, a Senate will more effectually main- 

* § 564. t § 565. % § 566. 



72 THE SENATE. [ch. vn. 

tain " the due responsibility in the Govern- 
ment," which is apt to be endangered by the 
frequency of the elections of the Lower House. 
The members of the Senate being less liable 
to change, will feel a greater degree of personal 
responsibility, and contribute to keep up the 
connected chain of legislation which is essen- 
tial to the public welfare.* 

Lastly, " a Senate duly constituted would 
not only operate as a salutary check upon the 
House of Representatives, but occasionally 
upon the people themselves, against their own 
temporary delusions and errors." In times of 
excitement, when the public may be " stimu- 
lated by some irregular passion, or some illicit 
advantage, or misled by the artful misrepre- 
sentations of interested men," . . . " how salu- 
tary will be the interference of a body of 
respectable citizens, chosen without reference 
to the exciting cause, to check the misguided 
career of public opinion, and to suspend the 
blow, until reason, justice, and truth can regain 
their authority over the public mind."t 

The Senate of the United States is composed 

* § 567. t § 568. 



ch. vil] THE SENATE. 73 

of two senators from each State, chosen by 
the legislature thereof for six years (sect. 3 
of the Constitution, clause 1); and by clause 
2, one-third of the Senate is renewed every 
second year. 

The fact of the senators being the represen- 
tatives of the several States in their individual 
and independent capacities, is of importance, 
" in the great difference it creates in the ele- 
ments of the two branches of the legislature, 
not unlike the different organisations of the 
House of Commons and the House of Lords 
in Great Britain."* The members of the 
House of Representatives of the United States 
are chosen in reference to population ; those 
of the Senate " represent the voice, not of a 
district, but of a State," t and a more enlarged 
view of the interests, not only of their own 
State, but of the whole Union of States, is 
expected of them. They will, therefore, be 
more likely to impose a salutary impediment 
to the multiplication of bad laws. They may, 
indeed, occasionally stop the progress of good 

* § 704. t § 699. 

E 



74 THE SENATE. [ch. vn. 

ones. " But," says Mr. Justice Story, " a 
good law had better occasionally fail, rather 
than bad laws be multiplied with a heedless 
and mischievous frequency. Even reforms, to 
be safe, must, in general, be slow ; and there 
can be little danger that public opinion will 
not sufficiently stimulate all public bodies to 
changes which are at once desirable and politic. 
All experience proves that the human mind is 
more eager and restless for changes than tran- 
quil and satisfied with existing institutions."* 
... " And it has been demonstrated that the 
Senate, in its actual organisation, is well 
adapted to the exigencies of the nation ; that 
it is a most important and valuable part of the 
svstem, and the real balance-wheel which ad- 
justs and regulates its movements." t 

The argument for the actual number of 
which the Senate is composed is stated to be, 
" that it is indispensable that it should consist 
of a number sufficiently large to ensure a suffi- 
cient variety of talents, experience, and prac- 
tical skill, for the discharge of all their duties. 
* § 701. t § 702. 



ch. vil] THE SENATE. 75 

The legislative power alone, for its enlightened 
and prudent exercise, requires no small share 
of patriotism, knowledge, and ability. In 
proportion to the extent and variety of the 
labours of legislation, there should be members 
who should share them, in order that there 
may be a punctual and perfect performance of 
them."* And a comparison between their 
number and that of the House of Lords, 
strengthens the conclusion that the number of 
members composing the Senate is neither too 
great nor too few for the adequate discharge of 
their duties. 

The reasons for the duration of the term of 
the office of senator for six years were, " that 
a deep-felt responsibility is incompatible with 
great frequency of elections. Men can feel 
little interest in power which slips away almost 
as soon as it is grasped, and in measures 
which they can scarcely do more than begin, 
without hoping to perfect." t The arguments 
in favour of the duration of the legislative 
office generally " may be urged with increased 

* § 706. t § 711. 

E 2 



76 THE SENATE. [ch. vn. 

force in regard to the Senate." It is ob- 
served that some of the wisest statesmen of 
America have not scrupled to assert that in 
some of their legislative assemblies there has 
been exhibited a marked deficiency in the 
knowledge of the means by which the real 
interests and welfare of a people are promoted. 
" It is utterly impossible for any assembly of 
men, called for the most part from the pursuits 
of private life, continued in employment for a 
short time, and led by no permanent motive to 
devote the intervals of public occupation to 
the study of the nature and operations of 
Government, to escape from the commission 
of many errors in the discharge of their legis- 
lative functions. In proportion to the extent 
and variety of those functions, to the national 
interests which they involve, and the national 
duties which they imply, ought to rise the in- 
tellectual qualifications and solid attainments 
of the members." A well-constituted Senate, 
therefore, " would be incalculably increased in 
value, by making its term of office such that, 
with moderate industry, talents, and devotion 



ch. vil] THE SENATE. 77 

to the public service, its members could 
scarcely fail of having the reasonable informa- 
tion which would guard them against gross 
errors, and enable them to resist visionary 
speculations and popular excitements,"* while 
it gave them the motives and the power to act 
upon their own convictions. 

This argument for the duration of the office 
of senator is of peculiar force in the United 
States, where, according to Mr. Justice Story, 
" it is a known fact in the historv of the indi- 
vidual States, that every new election (which 
now in most of the States takes place annually, 
in others every two years) changes nearly, 
if not quite, one-half of their representa- 
tives; and in the national Government, changes 
less frequent or less numerous can scarcely be 
expected. From this change of men there 
must unavoidably arise a change of opinions ; 
and with this change of opinions a correspon- 
dent change of measures." t How much this 
must interfere with both public and private 
interests may be readily conceived, and is, in 

* §§ 713, 714. t § 715, 



78 THE SENATE. [ch. vii. 

point of fact, very often most inconveniently felt 
in the common transactions of business. This 
" instability of the public councils gives an 
unreasonable advantage " to all those persons 
in the community who are always ready to 
prey upon the wants of others, " and generates 
the worst passions of selfishness, and the worst 
spirit of gaming." It also " impairs the re- 
spect and confidence of foreign nations," and 
" exposes the whole policy of a State to be 
counteracted by the wiser and more stable 
policy of its rivals."* 

A fear arose when the proposition to appoint 
the Senate for six years was about to be intro- 
duced into the Constitution, that by this dura- 
tion of office " they would gradually acquire a 
dangerous pre-eminence, and eventually trans- 
form themselves into an aristocracy." To quiet 
such fears, though held by the best authorities 
of the time to be unfounded, the provision was 
added, that one- third of the seats should be 
vacated every two years, thus creating " a 
biennial appeal to the States," as regards one- 

* § 716. 



ch. vil] THE SENATE. 79 

third of the number composing the Senate, 
" which must for ever prohibit any permanent 
combination for sinister purposes," without, it 
is thought, " impairing its efficiency for the 
discharge of its high functions." * 

The legal qualifications of a senator are — 
that he must be thirty years of age, have been 
nine years a citizen of the United States, and 
be, when elected, an inhabitant of the State 
for which he is chosen.-}- On these points 
there is no need to remark further, than that 
the legal age for a representative being twenty- 
five I (four years only beyond the age of legal 
qualification for a seat in the House of Com- 
mons), a member of the Senate of the United 
States may still, before the age of thirty, have 
acquired five years' experience in his legislative 
duties, if it had been his fortune to have been 
first elected a representative. Perhaps, also, 
reasons of prudence, in a country like the 
United States, where the ordinary education of 
youth ends much earlier than with us, may 

* §§ 718. 724. f Section 3 of the Constitution, clause 3. 
% Section 2, clause 2. 



80 THE SENATE. [ch. vn. 

afford valid ground for deferring the age of 
admission into the legislature. 

There are some other points regarding the 
Senate, which Mr. Justice Story discusses ; 
but as they have no particular interest in 
reference to similar points in our own institu- 
tions, I pass them by. It will also be more 
convenient to defer any general remarks upon 
the Senate, until we are able to embrace in 
the same view both the Senate and the House 
of Representatives. 



CH.vm.] THE HOUSE OF REPRESENTATIVES. 31 



CHAPTER VIII. 

THE HOUSE OF REPRESENTATIVES. 

The House of Representatives of the Union 
is composed of members " chosen every second 
year by the people of the several States." * 

The principle of popular representation was, 
as we have seen, no new thing to the American 
people at the time of the Revolution. They 
had been nursed in liberty under the old 
colonial charters, and had been accustomed to 
the process of voting the taxes and controlling 
the supplies, after the manner of the British 
House of Commons. The mode of election 
only, was a subject of controversy at the 
period of framing the Constitution. Various 
arrangements were proposed and debated : 

* Article 1, sect. 2. 

E 3 



82 THE HOUSE OF REPRESENTATIVES, [ch. vra. 

election by the State legislatures ; indirect 
election by delegates, &c. ; but the only true 
mode, according to Burke, of securing the 
real responsibility of the representatives to 
the people, was adopted — that of direct elec- 
tion by the people themselves. 

The right of the franchise, conferred by the 
State, ought unquestionably to raise, in the 
mind of every one invested with it, a sense of 
the responsibility it places him under, to exer- 
cise such right, according to the best of his 
judgment, for the purposes for which it was 
conferred upon him, namely, the public good. 
Thus considered, the possession of the fran- 
chise ought to elevate the feeling of personal 
dignity, strengthen the suggestions of duty, 
and furnish strong motives for mental cultiva- 
tion and study, without which it is impossible 
to follow with intelligence the discussions on 
the great public measures of the day. It is 
without doubt a gratifying and a noble inci- 
dent in the condition of a great State, that by 
the willing consent of the more instructed 
classes, and of those possessing, by means of 



ch. vra.] THE HOUSE OF REPRESENTATIVES. 83 

property, the greatest stake in the preservation 
of peace and good order and wise government, 
the franchise should be, by their act, through 
their representatives, distributed, without fear 
or apprehension, very widely among the mass 
of the community. But the extent to which 
this can be carried, with safety to all the com- 
plicated interests of the State, is and has ever 
been, by the best and greatest political autho- 
rities in ancient and modern times, argued as 
a question of expediency, to be determined by 
the discretion of the legal powers of the State 
for the time being. And as such, and not as 
a matter of abstract right, it is and has been 
determined by the legislation of the United 
States, as well as by that of the several States 
throughout the Union. Mr. Justice Story 
adopts and enforces this principle in the fol- 
lowing words : — 

" This fundamental principle of an immediate choice by 
the people, however important, would alone be insufficient 
for the public security, if the right of choice had not many 
auxiliary guards and accompaniments. It was indispensa- 
ble to provide for the qualifications of the electors. It 
is obvious that, even when the principle is established, 



84 THE HOUSE OF REPKESENTATIVES. [ch. vm. 

that the popular branch of the legislature shall emanate 
directly from the people, there still remains a very serious 
question, by whom and in what manner the choice shall be 
made."* 

This question, he adds, is sufficiently per- 
plexing in theory ; and when reduced to prac- 
tice in different free States, has been much 
varied, according to the different " manners, 
habits, institutions, characters, and pursuits " 
of the people ; " the local position of the terri- 
tory, in regard to other nations ; the actual 
organisation and classes of society ; the influ- 
ences of peculiar religious, civil, or political 
institutions;" . . "the national temperament;" 
. . . " the degrees of knowledge or ignorance 
pervading the mass of society."! 

" The most strenuous advocate for universal suffrage 
has never yet contended, that the right should be abso- 
lutely universal. No one has ever been sufficiently 
visionary to hold that all persons, of every age, degree, or 
character, should be entitled to vote in all elections of 
all public officers. Idiots, infants, minors, and persons 
insane or utterly imbecile, have been, without scruple, 
denied the right, as not having the sound judgment and 
discretion fit for its exercise. In many countries, persons 

* § 577. t § 578. 



oh. vni.] THE HOUSE OF REPRESENTATIVES. 85 

guilty of crimes have also been denied the right, as a 
personal punishment, or as a security to society. In most 
countries, females, whether married or single, have been 
purposely excluded from voting, as interfering with sound 
policy, and the harmony of social life. In the few cases 
in which they have been permitted to vote, experience 
has not justified the conclusion, that it has been attended 
with any correspondent advantages, either to the public or 
to themselves. And yet it would be extremely difficult, 
upon any mere theoretical reasoning, to establish any 
satisfactory principle upon which the one-half of every 
society has thus been systematically excluded by the other 
half from all right of participating in government, which 
would not, at the same time, apply to and justify many 
other exclusions."* 

If, according to the ultra-democratic theory, 
" all men are born free and equal — if, because 
all have common rights and interests to pro- 
tect, all have therefore a natural, equal, and 
inalienable right to vote, and to decide, by 
themselves or by their representatives, upon 
the laws and regulations that are to control and 
sustain such rights," what is there in that argu- 
ment that does not as much apply to females 
<c as free, intelligent, moral, and responsible 
beings, . . . having a vital stake in all the 

* § 579. 



86 THE HOUSE OF REPRESENTATIVES. [cH.vm. 

laws and regulations of society," or to minors, 
who, by the law of England, attain their ma- 
jority at the age of twenty-one ; by the law of 
France, at one time, at the age of thirty ; by 
the law of Naples, at eighteen ; and by the 
law of Holland at twenty-five?* "Who shall 
say that one man is not as well qualified as a 
voter at eighteen, as another at twenty-five, 
or a third at forty, and far better than most 
men at eighty ? " f 

It is almost superfluous to advert to the 
assumption on which the ultra-democratic 
theory rests, " that all men are born free and 
equal ;" its unsoundness has been long since 
fully exposed by the discussions to which it 
gave rise at the time of the French Revolu- 
tion. Men are born into society, and find, 
from the moment that they become responsible 
agents, that their natural liberty, even in the 
freest States, has been placed under certain 
limitations, long before they were born, by 
that society, and for the good of its members 

* Blackstone's Commentaries, §§ 463, 464. 
f Story, § 579. 



ch. vin.] THE HOUSE OF REPRESENTATIVES. 87 

as a whole. And if their natural liberty has 
been in one case justly restrained by laws ex- 
pressing the mature and enlightened opinion 
of the governing body of society — as by all 
those laws which prevent a man from using 
his natural liberty to the injury of his neigh- 
bour — why should it not be restrained with 
equal justice in another — as that no man 
should participate in the governing power, 
until the mature and enlightened opinion 
of the governing body of society is satisfied 
that he is capable of using that power 
with intelligence, and for the benefit of 
society? Again, with respect to the ultra- 
democratic notions of equality, it has been 
abundantly shown that it is perfectly un- 
true in fact, that all men are born equal, 
either in natural gifts and abilities, or in the 
eye of society, even the most savage. To 
equality before the law — that first sentiment 
of natural justice — every individual is entitled, 
of whatever age or sex, or of whatever condi- 
tion — mental, physical, or social. This just 
feeling and principle of equality before the 



88 THE HOUSE OP REPRESENTATIVES, [ch. viii. 

law, has, by a confusion of ideas, been ex- 
tended to convey the meaning of a natural and 
social equality, neither of which ever existed 
among men. In the same manner, the idea 
that there is such a thing as an abstract right 
to vote, is traceable to the habit of using the 
word "right" in a too general sense. The 
imperfection of language leads to the use of 
the same word to express a natural right as 
to express a civil right. The latter is a 
mere creation of the law for the time being — 
a civil ordinance, which may or may not be 
just or equitable, expedient or otherwise ; 
which, as regards the franchise, may involve 
the questions of whether the age at which a 
minor shall attain his majority shall be twenty- 
one, eighteen, or twenty-five, and whether it is 
for the general good that this or that qualifi- 
cation should be required of a man before the 
power of voting is conceded to him ; and when 
these questions are determined by the law of 
the State, the individual is invested with a 
right in accordance with that law, The former 
— a natural right — is one which the universal 



oh. vih.] THE HOUSE OF REPRESENTATIVES. 89 

sense of mankind in a state of civil society 
deems such : as the right to justice, to protec- 
tion against injury, and which may he claimed 
by any inhabitant of a free country, whether 
male or female, sane or insane, minor or of 
full age, or even a criminal. 

Mr. Justice Story proceeds to say : — 

" The truth seems to be, that the right of voting, like 
many other rights, is one which, whether it has a fixed 
foundation in natural law or not, has always been treated 
in the practice of nations, as a strictly civil right, derived 
from and regulated by each society according to its own 
circumstances and interests." * * * 

" If every well-organised society has the right to consult 
for the common good of the whole, and if, upon the prin- 
ciples of natural law, this right is conceded by the very 
union of society, it seems difficult to assign any limit to 
this right, which is compatible with the due attainment of 
the end proposed. If, therefore, any society shall deem 
the common good and interests of the whole society best 
promoted, under the particular circumstances in which it 
is placed, by a restriction of the right of suffrage, it is not 
easy to state any solid ground of objection to its exercise 
of such an authority."* 

He then goes on to show that every State 
in the Union has acted upon this principle ; 

* 5 580. 



90 THE HOUSE OF REPRESENTATIVES, [ch. vm. 

that " in the adoption of no State constitution 
has the assent heen asked of any but the 
qualified voters ;" and who shall be the quali- 
fied voters has been, and is continually being 
settled and altered by themselves, "no two 
States having fixed the qualifications of voters 
upon the same uniform basis." " From this," 
he adds, " will be seen how little, even in the 
most free of republican governments, any ab- 
stract right of suffrage, or any original in- 
defeasible privilege, has been recognised in 
practice." * 

If, therefore, there be any person in this 
country, of any pretensions to fair reasoning or 
competent information, who is still prepared 
to maintain that the franchise is anything 
more than a trust, placed by the legislative 
authority of the State, for the time being, in 
the hands of those who, in the judgment of 
that authority, will not abuse it, but will use 
it for the promotion of the common good, he 
must have recourse to the example of some 
country whose practice has gone beyond that 

* § 581. 



oh. viil] THE HOUSE OF REPRESENTATIVES. 91 

of " the most free of republican governments," 
the several States of the American Union — 
if such there be — and to arguments which 
those republican governments do not recognise. 

The fact has been, that in free States this 
privilege of the franchise has been intrusted 
to a greater or less number, "without any 
State being able to assert that its own mode 
is exclusively founded in natural justice, or is 
most conformable to sound policy, or is best 
adapted to the public security." # * It is 
entirely a question of local and temporary dis- 
cretion ; for "what may best promote the 
public weal and secure public liberty in one 
age or nation, may totally fail of similar re- 
sults under local, physical, or moral predica- 
ments essentially different."* 

At the time of the framing of the Constitu- 
tion of the United States, the differences in 
the manner in which the franchise was settled 
in the different States was remarkable. In 
Virginia, the exclusive right to vote was in 
the freeholders ; in Rhode Island and Con- 

* § 581. 



92 THE HOUSE OP KEPRESENTATIVES. [ch. viii. 

necticut, in the freemen ; in Massachusetts, 
in persons possessing a given amount of per- 
sonal property ; in other States, in persons 
paying taxes, or having a fixed residence. 
The question was much debated by the con- 
vention which drew up the Constitution, 
whether it would not be more fair and equal, 
and more likely to insure a direct and imme- 
diate representation of the popular opinion, if 
a uniform qualification for voting were adopted 
for the House of Representatives* It was, 
however, unanimously decided otherwise, and 
upon grounds precisely similar to those which 
are held to justify and recommend the very 
great diversity of qualifications for the elective 
franchise that has so long existed in this coun- 
try. On this point Mr. Justice Story's reason- 
ing is as follows : — 

" It might be urged that it is far from being clear, upon 
reasoning or experience, that uniformity in the composition 
of a representative body is either desirable or expedient, 
founded in sounder policy, or more promotive of the gene- 
ral good, than a mixed system, embracing and represent- 
ing, and combining, distinct interests, classes, and opinions. 
In England, the House of Commons, as a representative 



ch. vm.] THE HOUSE OF REPEESENTATIVES. 93 

body, is founded upon no uniform principle, either of num- 
bers, or classes, or places. * * And in every system of 
reform which has found public favour in that country, many 
of these diversities have ^een embodied from choice, as im- 
portant checks upon undue legislation, as facilitating the 
representation of different interests and different opinions, 
and as thus securing, by a well-balanced and intelligent 
representation of all the various classes of society, a per- 
manent protection of the public liberties of the people, and 
a firm security of the private rights of persons and pro- 
perty."* 

(Accordingly, the diversities of franchise in 
each State were adopted as the basis of the 
elections for the representatives of the Union ; 
the electors " of the most numerous branch of 
the State legislature" being fixed upon as 
those to be invested with the franchise for the 
election of the members of the House of Re- 
presentatives. 

The length of time for which the members 
of the House of Representatives should be 
elected was not settled by the framers of the 
Constitution without considerable differences 
of opinion. They had before them the varied 
examples in their own country, of Virginia, 

* § 585. 



94 THE HOUSE OF REPRESENTATIVES, [ch. vnj. 

electing its representatives for seven years, 
North and South Carolina for two years, Con- 
necticut and Rhode Island for six months, and 
the other States for a year. Abstract maxims 
and theoretical arguments had great influence 
in creating a preference for annual elections. 
The resolution ultimately adopted was, that 
the members of the House of Representatives 
should be elected for two years. Whether or 
not this was a wise decision, may be gathered 
from the views which Mr. Justice Story does 
not hesitate to place before his countrymen, 
with his usual fairness and honesty. His pro- 
position is, that — 

" The aim of every political Constitution is, or ought to 
be, first to obtain for rulers men who possess most wisdom 
to discern, and most virtue to pursue the common good of 
society ; and, in the next place, to take the most effectual 
precautions for keeping them virtuous, while they continue 
in their public trust."* 

The latter object may to some extent be 

attained by frequency of elections. But how 

frequent they ought to be is clearly a matter 

for the exercise of a wise discretion. For it is 

* § 589. 



CH.vm.] THE HOUSE OF REPRESENTATIVES. 95 

equally clear that too great frequency of elec- 
tions would completely defeat the first-named 
object. 

The reasons urged by Mr. Justice Story 
against too great frequency of elections are 
many and various. If they interfere too much 
with the pursuits of the people, they will give 
rise to a general indifference and inattention 
to elections. If they produce frequent changes 
in the public councils, they will introduce im- 
becility, irresolution, and the want of due in- 
formation in those councils. 

" Men, to act -with vigour and effect, must have time to 
mature measures, and judgment and experience as to the 
best method of applying them. They must not be hurried 
on to their conclusions by the passions or the fears of the 
multitude."* "The very frequency of elections has a 
tendency to create agitation and dissensions in the public 
mind, to nourish factions and encourage restlessness, to 
favour rash innovations in domestic legislation and public 
policy, and to produce violent and sudden changes in the 
administration of public affairs, founded upon temporary 
excitements and prejudices." \ "It operates also as a 
great discouragement upon suitable candidates offering 
themselves for the public service. They can have little 

* § 592. t § 593. 



96 THE HOUSE OF REPRESENTATIVES, [cam 

opportunity to establish a solid reputation as statesmen 
and patriots, when their schemes are liable to be suddenly- 
broken in upon by demagogues, who may create injurious 
suspicions, and even displace them from office before 
their measures are fairly tried. And they are apt to 
grow weary of continued appeals to vindicate their cha- 
racter and conduct at the polls, since success, however tri- 
umphant, is of such short duration, and confidence is so 
easily loosened." * " It is not enough that a member 
comes to the task with an upright intention and sound 
judgment, but he must have a competent degree of know- 
ledge of all the subjects on which he is called to legislate ; 
and he must have skill as to the best mode of applying it. 
The latter can scarcely be acquired but by long expe- 
rience and training in the national councils. The period 
of service ought therefore to bear some proportion to the 
variety of knowledge and practical skill which the duties 
of the station demand."! 

Every measure that comes before the legis- 
lature is to be discussed with reference to the 
rights, interests, and pursuits of the whole 
people. 

" Large and enlightened views, comprehensive informa- 
tion, and a just attention to local peculiarities, products, 
and employments, are indispensable qualifications" for a 
useful member of the legislative body. " Yet it is 
obvious, that if very short periods of service are allowed 

* § 602. t § 603. 



ch. viii.] THE HOUSE OF REPRESENTATIVES. 97 

to members, the continual fluctuations in the public 
councils, and the perpetual changes of members, will be 
very unfavourable to the acquirement of the proper know- 
ledge, and the due application of it for the public welfare. 
One set of men will have just mastered the necessary in- 
formation, when it will be succeeded by a second set, who 
are to go over the same grounds, and then are to be suc- 
ceeded by a third. So that inexperience, instead of practi- 
cal wisdom, hasty legislation, instead of sober deliberation, 
and imperfect projects, instead of well-constructed systems, 
would characterise the national government."* 

These and other considerations of obvious 
weight and importance, as affecting the chances 
of a country getting its best informed and most 
experienced and most trust-worthy men to 
serve it, are brought together by Mr. Justice 
Story with much care and in much detail, and 
lead directly to the conclusion, which indeed 
he does not take the trouble to disguise, that 
the election of members for the House of Re- 
presentatives of the United States for two 
years only, is not well calculated to fulfil the 
conditions which he lays down as those under 
which a country is most likely " to obtain for 
rulers men who possess most wisdom to dis- 

* § 604. 

F 



98 THE HOUSE OF REPRESENTATIVES, [cam 

cern, and most virtue to pursue, the common 
good of society." He thinks the decision, by 
which the period of two years was adopted in- 
stead of one, both politic and wise ; * but the 
whole scope of his argument, and his remark 
that, since the great increase in territory and 
population of the United States of late years, 
" a far more exact and comprehensive know- 
ledge is now necessary to preserve the adjust- 
ments of the Government, and to carry on its 
daily operations, than was required, or even 
dreamed of, at its first institution," t prove that, 
in his opinion, a longer duration of the term for 
which the members of the House of Repre- 
sentatives are elected, would conduce more to 
the general interests of his country. 

The inferior position which, both in the 
public estimation and in actual power, the 
House of Representatives holds in the system 
of the United States Government, as compared 
with the Senate, will be adverted to here- 
after. 

The questions relating to the qualifications 

* § 611. t § 605. 



ch. vra.] THE HOUSE OF REPRESENTATIVES. 99 

for members of the House of Representatives, 
— their age, religious opinions, and citizenship, 
may be passed by, as not being likely to be 
regarded as very applicable to any of the 
matters of controversy in this country. 

The apportionment of the representatives 
among the States was, by the Constitution, 
fixed at one for every 30,000 inhabitants ; 
each State to have at least one representative ; 
and an arrangement was introduced applica- 
ble to the slave-holding States, declaring that 
the number in those should "be determined 
by adding to the whole number of free persons, 
including those bound to service for a term of 
years, and excluding Indians not taxed, three- 
fifths of all other persons." 

Much difference of opinion existed at the 
time upon the question of how the apportion- 
ment ought to be made. One principle, much 
urged, tended to preserve an exact equality of 
power between all the States, as under the 
Confederation. Another aimed at making 
property the basis of representation. The 
maxim under which this view was sought to be 

F 2 



100 THE HOUSE OP REPRESENTATIVES, [oh. vm. 

established was, "That taxation and representa- 
tion should go hand in hand." This had been 
a favourite theory with the American people ; * 
but it was understood in a sense very different 
from that which has been usually assigned to 
it by the democratic school of more recent 
times. In America it meant " that represen- 
tation should be in proportion to property."! 
Accordingly, it was argued that this principle 
" might commend itself to some persons, be- 
cause it would introduce a salutary check into 
the legislature in regard to taxation, by secur- 
ing, in some measure, an equalisation of the 
public burdens, by the voice of those who were 
called to give most towards the common con- 
tributions."^: This is a totally different result 
of the above maxim, from that drawn from it 
by the modern school of democracy, namely, 
" that every man who pays taxes should have 
a vote;" or, "that it is unjust that a man 
should be taxed without also being repre- 
sented." These are only other forms of the 
assumption, that the franchise to be just 

* § 632. t § 632. % § 632. 



ch. viil] THE HOUSE OF KEPKESENTATIVES. 101 

should be universal ; and are equally open to 
the question of what meaning is to be attached 
to the term " universal : " whether or not it is 
to include females ; and whether or not the 
man of twenty years of age, who is taxed as 
much as the man of twenty-one, is to be ex- 
cluded, as well as the one of nineteen or 
eighteen. 

The basis on which the representation, as 
regards numbers and property, was finally 
fixed, was, "that representation and direct 
taxes should be apportioned in the same 
ratio." # Thus it was not confined to " either 
persons or property, numbers or wealth," 
but it is an admixture of all ; similar, there- 
fore, to a certain extent, in intention, to 
our own, and designed, like our own, " by ap- 
portioning influence among each," to introduce 
and to perpetuate " vigilance, caution, and 
mutual checks." t 

The new apportionments, to adjust the 
representation to the increase of the popula- 
tion, take place every ten years. The results 

* § 632. t § 633. 



102 THE HOUSE OF EEPEESENTATIVES. [ch. viti. 

have been remarkable. In 1790 the population 
of the United States was about 3,929,000 ; in 
1830 it was about 12,866,000; in 1840 it was 
17,063,353; and in 1850,23,191,074. 

The numbers composing the House of Re- 
presentatives were originally sixty-five ; they 
have, by the Act of July, 1852, been increased 
to 234 ; and the proportion of representatives 
to population has been raised first, in 1792, to 
one for every 33,000 of the population : next, 
in 1811, to one for every 35,000; then, in 
1832, to one for every 47,700; by the Act of 
June 25, 1842, to one for every 70,680; and 
by the Act of 1850, to one for every 93,420. 

The particular mode by which this distri- 
bution is arrived at, and the fractional numbers 
dealt with in apportioning representatives and 
direct taxation, though matters at one time of 
much controversy in the United States, need 
not occupy our attention. Neither need we be 
detained by the few other points adverted to 
under this head. 

One or two additional remarks only are 
necessary in order to record Mr. Justice Story's 



ch. viil] the house of eepresentatives. 103 

views as to the mental qualifications and 
attainments expected of a member of the 
House of Representatives. He says that 
" Information of peculiar local interests is 
of less value and importance in a member 
of the House of Representatives than in that 
of a member of a State legislature. The 
knowledge required of a national representa- 
tive is necessarily of a more large and compre- 
hensive character."* . . . " Few members, com- 
paratively speaking, will be found ignorant of 
local interests ; but time, diligence, and a rare 
union of sagacity and public spirit, are indis- 
pensable to avoid egregious errors in national 
measures."! ..." The very devotion to local 
views, feelings, and interests, which naturally 
tends to a narrow and selfish policy, may be a 
just disqualification and reproach to a member 
of Congress. A liberal and enlightened 
policy, a knowledge of national rights, duties, 
and interests, a familiarity with foreign go- 
vernments and diplomatic history, and a wide 
survey of the operations of commerce, agricul- 

* § 659. f § 660. 



104 THE HOUSE OP KEPKESENTATIVES. [oh. viil 

ture, and manufactures, seem indispensable 
to a lofty discharge of his functions." * 
Reference is then made to the frequent habit 
in Great Britain, " of selecting men for repre- 
sentatives of large and populous cities and 
districts, who do not reside therein, and can- 
not be presumed to be intimately acquainted 
with their local interests and feelings. The 
choice, however, is made from high motives, a 
regard to talents, public services, and political 
sagacity."! An opportunity occurs, after a 
few pages upon another branch of the subject, 
of touching upon the question as to whether 
large or small electoral districts afforded the 
best prospect of obtaining for the service of 
the State the best and most highly-qualified 
class of representatives ; and the opinion of 
Mr. Ames is quoted, from a speech delivered 
by him in Congress in 17&9, in favour of the 
former, " because small districts may be con- 
ducted by intrigue ; but in large districts 
nothing but real dignity of character can 
secure an election." The theory of 1789 can- 

* § 659. t $ 661. 



CH.vm.] THE HOUSE OF REPRESENTATIVES. 105 

not, in Mr. Justice Story's opinion, look for 
support in the facts of the succeeding fifty 
years. " Unfortunately," he says, " the expe- 
rience of the United States has not justified 
the belief that large districts will always 
choose men of the greatest wisdom, abilities, 
and real dignity. 



" # 



* § 675, note. 



F 3 



106 ELECTIONS. [ch.ix. 

CHAPTER IX. 

ELECTIONS. 

The times, places, and manner of holding 
elections for senators and representatives is, by 
the first clause of the fourth section of the first 
article of the Constitution, left to the State 
legislatures. 

" The manner is various; and perhaps the power has 
been exerted, in some instances, under the influence of 
local or party feelings, to an extent which is indefensible 
in principle and policy. There is no uniformity in the 
choice, or in the mode of election. In some States the 
representatives are chosen by a general ticket for the 
whole State ; in others they are chosen singly in districts ; 
in others they are chosen in districts composed of a popu- 
lation sufficient to elect two or three representatives ; and 
in others the districts are sometimes single, and sometimes 
united in the choice. In some States the candidate must 
have a majority of all the votes to entitle him to be deemed 
elected ; in others (as it is in England), it is sufficient if 
he has a plurality of votes. In some of the States the 
choice is by the voters viva voce (as it is in England) ; in 
others it is by the ballot."* 
* § 826. Tucker's Blackstone's Commentaries, vol. i., App. 192. 



ch. ix.] ELECTIONS. 107 

These irregularities have, according to Mr. 
Justice Story, been productive of evils and 
" some inconveniences to the public service." # 
He, however, abstains from going into details, 
and merely adds that the existing system is 
maintained by the public opinion. 

Far greater, however, than any of the in- 
conveniences which Mr. Justice Story does, in 
a few words, touch upon, such as the occasional 
fact of a district, or even a whole State, being 
deprived of its vote at Congress by reason of 
the time of its holding its elections, is the evil 
which has been steadily gaining ground, of 
the whole machinery of the elections gradually 
falling into the hands of persons who devote 
themselves to the occupation of arranging 
them, of fixing upon and bringing forward the 
candidates, of creating for them a name and 
character by means of unceasing eulogies in 
the public press, of dictating to them their 
policy, of describing in its most minute details 
the course which it is expected of them that 
they will take on all the leading questions be- 

* § 826. 



108 ELECTIONS. [ch. ix. 

fore the public, whether of internal or external 
interest, and finally, when the elections have 
terminated in success, looking for their reward 
from the various sources within the means of 
the predominant political party, should their 
candidate happen to belong to it. 

It cannot be doubted that this system is one 
of the results of the great frequency of elections. 
Persons of fixed and steady occupations, who 
compose nearly the whole community among a 
people so occupied with commerce and industry 
in its various forms as the people of the United 
States, may occasionally, under the pressure or 
excitement of some important question, give 
up their time and attention to the details of 
political contests ; but in a country where the 
suffrage is so extended ; where, except in the 
cities, the population is scattered over wide 
surfaces, dwelling in small villages distant 
from each other, or in insulated farms, with 
often very imperfect means of communication, 
along half- formed roads, it cannot be a matter 
of surprise that such persons should, in the or- 
dinary course of things, leave the field of politi- 



ch. ix.] ELECTIONS. 109 

cal agitation, and the difficulties and turmoils of 
election contests, open to those, who make it a 
matter of business, and can therefore devote 
to it the principal part of their time. This 
process, however, is manifestly not the one 
most calculated to bring forward for the service 
of the State, candidates who come up to the 
standard which Mr. Justice Story has, with a 
high sense of its truth and importance, held 
up before his countrymen. 

I do not wish to imply that no such traffickers 
in political agitation, or in the " working of 
elections" exist among ourselves. Far from 
it But as no human system is perfect, so 
neither has that of the United States escaped 
an evil incident to the peculiar political organ- 
isation it has chosen ; and therefore we may 
feel assured that we should not escape it in a 
similarly aggravated degree, under a franchise 
unduly extended, and a greater frequency of 
elections. 

But, if possible, a still greater and more 
grave departure from the theory of the Consti- 



110 ELECTIONS. [ch. ix. 

tution, as it existed in the eyes and expectations 
of its careful and prudent founders, has taken 
place in the gradual lowering throughout nearly 
all the States of the Union, and the entire 
abandonment in two-thirds of them, of those 
qualifications for the exercise of the franchise 
which existed when the Constitution was 
adopted. These qualifications have been al- 
ready described,* and have been seen to have 
been founded on property, on residence, on the 
payment of taxes, varying in degree in the 
different States, but all resting on one 
or the other requirement, as an essential 
principle of stability: their very variety 
being justified, as affording " checks upon 
undue legislation," and as tending to protect 
individual interests without sacrificing the 
general good ; and defended by the example 
of their utility in helping to produce and to 
maintain a system of fair and equal liberty, 
such as we happily enjoy in this country. 
It will be remembered that, by clause 1 of the 

* Page 91. 



ch. ix.] ELECTIONS. Ill 

3rd section of the Constitution, the senators 
of the United States are to be elected by the 
legislatures of the individual States ; and by 
section 2 of the first article, the members of 
the House of Representatives of the United 
States are to be elected by the electors of the 
most numerous branch of the State legisla- 
tures ; in other words, by the electors of the 
House of Representatives of each State. 

The condition of the franchise, therefore, in 
the individual States, has a most direct bear- 
ing upon the elections for the senators and 
representatives of the United States.* 

What this franchise has gradually become 
is, accordingly, a matter of the first im- 
portance in reference to the United States' 
Constitution, and to the question whether it 
continues in theory and in fact what it was at 
the time of its formation sixty-five years ago. 

To exhibit this point I will avail myself of 

* The individual States are divided into electoral districts ; 
the smaller elect the members of the House of Representatives 
of the State, the larger the Senate. The franchise is, with, I 
believe, only one exception (that of North Carolina), the same 
for both. 



112 ELECTIONS. [oh. ix. 

the authority of Mr. Justice Kent, whose 
" Commentaries on the American Constitu- 
tion," published in 1844, are held in equal 
estimation with those of Mr. Justice Story, 
and both are fully entitled to a place beside 
those of Blackstone, wherever the English 
language is spoken. 

At pp. 227-229, vol. i., of his learned work, 
Mr. Justice Kent thus expresses himself: — 

" The progress and impulse of popular opinion is rapidly 
destroying every constitutional check, every conservative 
element, intended by the sages who framed the earliest 
American constitutions, as safeguards against the abuses of 
popular suffrage. 

" Thus, in Massachusetts, by the Constitution of 1780, a 
denned portion of real or personal property was requisite 
in an elector; — that qualification was dispensed with 
by the amended Constitution of 1821. 

" By the practice under the Charters of Rhode Island 
and Connecticut, a property qualification was requisite to 
constitute freemen and voters. This test is continued in 
Ehode Island, but done away with in Connecticut by their 
Constitution of 1818. 

" The New York Constitution of 1777 required the 
electors of the Senate to be freeholders, and of the Assem- 
bly to be either freeholders, or to have a rented tenement 
of the yearly value of forty shillings. The amended Con- 
stitution of 1821 reduced this qualification down to pay- 



ch. ix.] ELECTIONS. 113 

ment of a tax, or performance of militia duty, or assess- 
ment and work on the highways. But the Constitution as 
again amended in 1826, swept away all these impediments 
to universal suffrage. 

" In Maryland, by their Constitution of 1776, electors 
were to be freeholders, or possessing property to the amount 
of 30Z. ; but by legislative amendments in 1801 and 1809 
(and amendments are allowed to be made in that State by 
an ordinary statute, if confirmed by the next succeeding le- 
gislature) all property qualification was disregarded. 

" The Constitution of Virginia, in 1776, required the 
electors to be freeholders, but the Constitution of 1830 re- 
duced down the property qualification to that of being the 
owner of a leasehold estate or a householder. 

"In Mississippi, by the Constitution of 1817, electors 
were to have been enrolled in the militia, or paid taxes : 
but those impediments to universal suffrage were removed 
by the new Constitution of 1833. 

" So the freehold qualification, requisite in certain cases 
by the Constitution of Tennessee of 1796, is entirely dis- 
continued by the Constitution of 1835. 

" All the State constitutions formed since 1800 have 
omitted to require any property qualifications in an elector, 
except what may be implied in the requisition of having 
paid a State or county tax, and even that is not in the con- 
stitutions more recently formed or amended, except in the 
Bhode Island Constitution of 1843. * * * 

" Such a rapid course of destruction of the former con- 
stitutional checks is matter for grave reflection; and to 
counteract the dangerous tendency of such combined forces 
as universal suffrage, frequent elections, all offices for 



114 ELECTIONS. [ch. ix. 

short periods, all officers elective, and an unchecked press ; 
and to prevent them from racking and destroying our 
political machines, the people must have a larger share 
than usual of that wisdom which is ' first pure, then peace- 
able, gentle, and easy to be entreated.' " 

The actual state of the suffrage in those 
States where the right of suffrage is exercised 
without any qualification whatever, is thus 
described : — 

" In the States of Maine, Vermont, New York, Mary- 
land, South Carolina, Kentucky, Indiana, Illinois,* Mi- 
chigan, Missouri, Mississippi, Tennessee, Arkansas, and 
Alabama, no property qualification whatever, not even 
paying taxes or serving in the militia, is requisite for the 
exercise of the right of suffrage. Every free male white 
citizen of the age of twenty-one years, and who shall have 
been a resident for some short given period, varying in 
those States from two years to three months, is entitled to 
vote." 

To this enumeration the following States 
are now to be added : — Florida, Texas, Wis- 
consin, Iowa, California ; and finally the once 
aristocratic State of Virginia, which, on the 
25th of October, 1851, adopted the same 

* In Illinois, " aliens, being residents, are entitled to vote." 



ch. ix.] ELECTIONS. 115 

ultra-democratic form of constitution as the 
States above named, by a vote of 7*5,7^8 to 
11,060 against it. 

The following States have retained the sem- 
blance of a qualification : — 

" In the States of New Hampshire, Massachusetts, Con- 
necticut, Pennsylvania, Delaware, Georgia, Ohio, and 
Louisiana, the elector is required, in addition to age and 
residence, to have been assessed and paid, or, in Ohio, 
* charged ' with a State or county tax, or in Connecticut to 
have served in the militia." 

In Rhode Island, North Carolina, and New 
Jersey, a qualification as to property is still re- 
quisite, but in the latter is rendered nugatory. 

" The Rhode Island Charter of 1663 pre- 
scribed no regulation as to the right of suf- 
frage." In 1724 an Act was passed limiting 
the franchise to those who possessed a free- 
hold estate of a certain value, or was the 
eldest son of a freeholder. This requisite 
value was said to be 134 dollars. The new 
Constitution of 1843 has defined it to mean 
that sum clear of all encumbrances, and has 
required residence in the State of two years, 
and of six months in the city or town in which 



116 ELECTIONS. [ch. ix. 

the elector votes. But an elector having no 
property qualification is entitled to vote if he 
has resided during the six months preceding 
the election, and been registered in the pre- 
vious year, and has also paid a tax of one 
dollar, or been enrolled and served in the 
militia. Naturalised citizens must have the 
freehold qualification above required ; and no 
person can vote to impose a tax or expend 
money in any city or town unless he shall have 
paid a tax within the year preceding, upon 
property valued at 134 dollars. 

* * * " These provisions, together with 

that relating to the judicial tenure and compensation, 
render the aspect of the constitution of that State more 
wise and conservative than any other State constitution 
recently framed or amended. Indeed, that constitution 
seems to stand pre-eminent in value over any of the exist- 
ing State constitutions in the guards it introduces against 
one of the most alarming evils incident in large towns and 
cities to our democratical establishments — I mean the 
fraudulent abuse of the right of suffrage." 

In North Carolina, the electors of the 
Senate must be freeholders, and the electors 
of the House of Commons (the name is 



ch. ix.] ELECTIONS. . 117 

still retained from the colonial period) must 
have paid public taxes. 

In New Jersey, by the law of 1798, the 
electors must have a clear estate of 501., and 
have resided for a year in the country. " But 
the election law of 1839 has reduced this con- 
stitutional check down to worthlessness, for it 
declares, that every person who has been 
assessed and paid a State or county tax within 
two years preceding the election, is to be 
deemed worth 50/. * clear estate in the State. 5 " 

This almost entire destruction, in so short 
a period, of all those " constitutional checks 
and conservative elements" in the franchise 
of the individual States, which had been 
regarded by the framers of the Constitution 
as essential to genuine liberty, has entirely 
altered the basis on which those able men 
placed the Constitution, and on which they 
relied for its continuing to be what their pru- 
dence and wisdom left it. 

In determining that the Senate of the United 
States should be elected by the State legisla- 
tures, they expected that those legislatures 



118 ELECTIONS. [ch.ix. 

would be composed, first, of a Senate re- 
turned by a class of electors representing the 
more stable elements of the community ; and, 
secondly, of a House of Representatives rest- 
ing on similar elements, namely, on the 
electoral qualifications of property, residence, 
and the payment of taxes. 

The process of change in this short space of 
time has swept away these expectations ; and 
the Senate of the United States is now elected 
by State legislatures, based on a franchise un- 
restricted by any of the above qualifications, 
except in the very few instances above noticed ; 
and the members of the House of Representa- 
tives of the United States are returned by 
direct election, by voters having, in twenty of 
the States, no property qualification at all, and 
in nine next to none, the remaining two only 
having retained any valid qualification. 

It will, I imagine, be readily granted that 
this great change in the basis of power can- 
not have taken place without impressing 
upon the Senate and House of Representatives 
of the United States a quality and direction to 



ch. ix.] ELECTIONS. 119 

a very considerable extent in accordance with 
it ; and therefore much more directly amenable 
to popular impulses than the legislative body 
contemplated by the framers of the Consti- 
tution. 

But the above great change is far from being 
the only proof of the progress of ultra-demo- 
cratical opinions which the legislation of that 
country has afforded of late years. Among 
the most remarkable has been the adoption, 
in more than two-thirds of the States, of 
the practice of electing the Judges, by po- 
pular vote and for short periods only ; 
thus striking at the root of their indepen- 
dence, and violating a principle which has 
ever been held to be among the first elements 
of freedom, and of protection to life and pro- 
perty. The fact has been already touched 
upon ; the extent to which the practice has 
been carried will be noticed in its proper place. 

It is a common answer in the United States, 
in reply to questions as to the prospects of so- 
ber and temperate government, and the preser- 
vation of the just and equal rights of all, that 



120 ELECTIONS." [ch. ix. 

the democratic influence is extending itself in 
other countries besides the United States, and 
that it has made itself much more felt in this 
country during the last fifty years than it had 
ever done before. There is, however, be- 
tween the constitutional changes that have 
taken place in this country and those of the 
United States, this marked difference, that 
their changes are departures from the prin- 
ciples of their Constitution ; ours have been in 
accordance with our constitutional principles, 
enlarging their scope so as to embrace a 
greater number of individuals, but preserving, 
with all the guards that cautious wisdom could 
devise, the principles themselves, as the best 
guarantees of freedom, of safe and satisfactory 
progress, of high civilisation, and national 
honour. 

There is another subject which requires to 
be noticed under this head of the elections in 
the United States, namely, the mode of giving 
the votes, which, as has been seen (p. 106), is 
in some States appointed to be viva voce, in 
others by "ballot." 



CH.ix.] ELECTIONS. 121 

It is necessary to repeat that this word 
never means, in the United States, " secret 
ballot, ,, unless in the instances, which are 
rare, when the word " secret" is expressly 
added to it. 

In this country we invariably associate with 
the word " ballot," the mode of giving a secret 
vote by dropping a " ball" into a covered box, 
in the manner too well known to need to be 
described. 

In the United States the word " ballot" has, 
in its general acceptation, nothing to do with 
the word " ball," but means " a piece of paper, 
with the names of the candidate or candidates 
written or printed upon it." 

In the Southern and Western States gene- 
rally the voting is entirely open, and usually 
viva voce. 

At all elections in the other States, the 
friends of the different candidates stand round 
the voting places, with the written or 
printed voting papers (called tickets) in their 
hands, and as each voter approaches, he takes 
from the hands of one of the agents of the 



122 ELECTIONS. [ch. ix. 

candidate or candidates for whom he intends 
to vote, one of these lists, openly before all the 
world, and delivers it, folded or unfolded as 
the case may be, to the persons taking the 
poll. 

The tickets are now universally, I believe, 
printed ; and being printed upon coloured 
paper, — the colour or some distinguishing de- 
vice indicating the party to which the candi- 
dates belong, — the very fact of presenting a 
paper thus coloured or marked, though it 
might be folded up, in itself at once shows 
which side the voter takes at the election. 

It will be desirable to describe by a few short 
quotations from the laws of some of the prin- 
cipal States, the different arrangements in re- 
gard to this matter in each. 

By chapter 42 of the Acts of Massachusetts 
(1839 to 1846), relating to the election of the 
governor, lieut.-governor, senators, and re- 
presentatives of the Commonwealth, it is en- 
acted — 

" Section 5. That no vote shall be received by the 
officers presiding at any such election, or at any election 



ch. ix.] ELECTIONS. 123 

for select-men and town-clerk of any town, or for mayor, 
aldermen, or common council of any city, unless the same 
shall be presented for deposit in the ballot-box, open and 
unfolded ; nor shall any such vote be so received until the 
name of the person offering the same shall have been 
found upon the list and checked by the presiding officers, 
or by some one appointed by them therefore." 

I have described in a former volume* the 
change made in the law of Massachusetts in 
1851, by which, instead of this manly mode of 
giving a vote by presenting the voting paper 
"open and unfolded," the secret ballot was 
attempted to be introduced into practice ; and 
I mentioned the process of voting which I 
witnessed at Boston, under, though by no 
means in accordance with, the new law. I 
described also the indignant feeling exhibited 
at a meeting of upwards of 5000 of the 
electors of Boston and its vicinity, against the 
attempt to impose secrecy upon their votes ; 
their utter repudiation of it, as unworthy of 
men who had a duty to perform to the 
State, and were neither afraid nor ashamed to 

* Notes on Public Subjects, &c. Murray. 1852. 

G 2 



124 ELECTIONS. [oh. ix. 

perform it openly ; and their bold declaration, 
that the man who was either the one or the 
other, was neither worthy of having a vote, 
nor entitled to have one. Indeed, the idea of 
secrecy in the mere act of giving the vote, on 
the part of 5000 men who came together to a 
great public meeting to declare their senti- 
ments, was altogether a contradiction and pre- 
posterous. Secrecy in the act of voting must, 
to be effectual as a protection to the voter, be 
accompanied with secrecy and silence, toge- 
ther with hypocrisy, on the subject of politics, 
for his whole life, which, if possible, would be 
contemptible, and which is plainly impossible 
in any country, much less a free one. 

So strongly were these sentiments enter- 
tained by the electors of the Whig party in 
Massachusetts, that, on that party returning to 
power, the law relating to secrecy was altered 
in the spring of this year (1853), having been 
only carried originally by the democratic party 
by a very small majority, and under the stimulus 
of particular circumstances, which I have ad- 
verted to in the volume above-mentioned. 



CH.ix.] ELECTIONS. 125 

I am informed by a friend, who has the best 
means of knowing what was done, that the 
modification introduced into the law by the 
Whig party in the spring was the allowing 
the voter either to put his vote into an en- 
velope, or to deposit it open, as before. 

The question has since been brought before 
the " Convention," which has been lately as- 
sembled to discuss the revision of the Massa- 
chusetts' Constitution. The existence of such 
a Convention in a State like Massachusetts, 
where the population has been more fixed, and 
the ideas of republican government more sober, 
and with a greater leaning to the associations 
of the past, is probably the strongest proof that 
could be given of the progress of ultra-demo- 
cracy in the United States. In this Conven- 
tion, which assembled in May, 1853, the de- 
mocratic party had a large majority ; and into 
the projected amendments of the Constitution 
which they drew up, and which were submitted 
to the people in November, they re-introduced 
the proposition to require the votes to be en- 



126 ELECTIONS. [ch. ix. 

closed in envelopes. The proposed new Con- 
stitution was rejected, but by a narrow ma- 
jority ; the votes being (in round numbers), 
For, 62,000; Against, 67,000. # 

The expression used in the election law of 
the State of Ohio, is another example of the 
ordinary meaning attached to the word " bal- 
lot." 

By the 43rd chapter of the statutes 
of the State of Ohio, sec. 9,t it is enacted, 
" That each elector shall, in full view, deliver 
to one of the judges of the election, a single 
ballot or piece of paper, on which shall be 
written or printed the names of the persons 
voted for," &c., &c. 

Nothing is said about folding the paper for 
the purposes of concealment, but in the next 
section " the judge of the election " is simply 
instructed to put the paper in the box " with- 
out inspecting the names written thereon." 

Again, in the election law of the State of 
Maine (March, 1821), chap. 11 5, sec. 6, nothing 

* November 15. A few votes not returned. t 1841. 



ch. ix.] ELECTIONS. 127 

is said about the votes being secret ; but it is 
solely required of the " Select-men and Asses- 
sors presiding" at the election, that " they 
shall call on the voters in such meeting quali- 
fied for choosing such officers, requiring each 
of them to give in their votes on one list, for 
as many different persons as are then to be 
chosen ;" and by section 9> no vote is to be 
received " unless delivered in writing by the 
voter in person." And by the Election Law of 
the same State for 1841, chap. 518, sec. 3, " the 
ballots for the election of Governors, Senators, 
Representatives, &c., are to be written or 
printed on clear white paper." # # 

I will now give a couple of instances in which 
the law makes a show of requiring secrecy 
in the candidates voted for , but in a manner 
so vague and imperfect, as to prove that no 
value is attached to the provision. 

By the revised statutes of Indiana (1848), 
chapter 5, art. 4, sec. 31, it is provided 
that " the ballot be a paper ticket which shall 
contain, written or printed, or partly written 
and partly printed, the names of the persons for 



128 ELECTIONS. [ch. ix. 

whom the elector intends to vote." # * And 
by section 32, " the inspector shall receive 
his ballot, and in the presence of the other 
judges put the same, without being opened or 
examined, into the ballot-box." # * 

By the election law of the revised statutes 
of the State of New York (1845-6), chap. 6, 
sec. 7> "The electors shall vote by ballot ; and 
each person offering to vote shall deliver his 
ballot, so folded as to conceal its contents, to 
one of the inspectors, in the presence of the 
board of inspectors." 

Whatever show of concealment there may 
be in these provisions, and in similar ones in 
other States, the universal practice, as is very 
well known, is, that there is no concealment 
whatever, and that voters, in point of fact, no 
more attempt to disguise their inclinations in 
favour of particular candidates, or their votes, 
than they do in this country. 

The following extract from a New York 
paper describes with so much particularity the 
actual process of elections in that city and 
State, and the manner in which the elections 



ch. ix.] ELECTIONS. 129 

are " worked," that it will be read with some 
interest. I should not insert it in these pages, 
did it not exactly correspond with the accounts 
given me of those scenes in that country, by 
persons on whose fairness and strict veracity I 
place the most implicit confidence. It amply 
confirms also what has been said above, as to 
the hands into which the elections have now 
fallen. 

From the New York Herald of May 20th, 
1852 :— 

" THE COEKUPTION OF THE PEIMAEY ELECTIONS. 

" The whig primary elections that have been carried on 
during the last week and the present, in this city, exhibit 
more than the ordinary amount of bribery, corruption, and 
fraud, of every description. The way in which the primary 
elections, both of whigs and democrats, have been 
managed for several years past in this city, is a subject of 
comment and complaint among all classes ; but no remedy 
appears to have been thought of for the evil, and respect- 
able citizens, instead of going to those elections, and 
taking such a part in them as would keep the rowdies and 
politicians in abeyance, have surrendered their rights into 
their hands, and for the most part have kept aloof from 
the contest, preferring to mind their own private business 
rather than be exposed to collision with bullies, in minding 
the business of the public, which is everybody's business 

G 3 



130 ELECTIONS. [ch.ix. 

and nobody's. The result is, that corruption prevails to 
an alarming extent in these primary party elections, which 
rule and control the legal elections of the people — the 
nominees of the rum and rowdy delegates, no matter how 
unfit for office, carrying all before them, according to the 
usages of party, in voting for what they call " regular 
nominations," but which ought to be called irregular, dis- 
orderly, and mob nominations. For instance, look at the 
proceedings on Thursday last, in the nineteenth ward — 
voters carried to the ballot-box in scores of waggons, from 
various localities ; and, in other wards, hundreds of demo- 
crats voting for Scott or for Fillmore — men ignorant and 
steeped in crime — picked up in all the purlieus of the city, 
and purchased at a dollar a head ; and some, it is said, so 
low as fifty cents, to deposit in the ballot-box a vote they 
had never seen. This demoralising process is playing fear- 
ful havoc with our institutions, rendering them, to a vast ex- 
tent, not only a nullity, but perverting them to mischief — 
to bad and corrupt legislation — and to the mal-administra- 
tion of public justice. The judicious grieve at these 
results; but what can they do to arrest the progress of 
the evil? 

" The following is a faithful and exact description of the 
system : — A lazy fellow^ who hates to work for a living, 
and encouraged by the success of ward politicians, who 
have grown fat upon corruption and the spoils of office, 
devotes his energies, day and night, to the acquisition of 
influence in the ward in which he resides. He spouts 
—he brawls in the bar-room, and affects public virtue 
of the highest order. He is a patriot of the first water, 
and " a clever " fellow to boot. He treats the rowdies 



ch. ix.J ELECTIONS. 131 

whenever he meets them, and makes them his fast 
friends. He is most diligent in attending to all matters of 
public interest connected with the ward or the city. If he 
has sufficient ability, he draws up resolutions for public 
meetings and committees, and studies the forms and prece- 
dents of political organisations, so that he has them at his 
fingers' ends, and he is consulted as an oracle upon all oc- 
casions of doubt or difficulty, or importance. If there is 
an honest man in the ward of the same politics, who has 
any taste or ambition for public affairs, and especially if he 
shows any talent, he takes every opportunity to blast his 
character, and calls him a traitor, an intriguer, a dema- 
gogue, or some other hard name. For the simple and the 
confiding, he promises to obtain situations in the Post 
Office, the Custom House, and the Police. He thus 
gradually acquires the influence he seeks, and soon finds 
himself a far more important man in the ward than his 
neighbour, who is a man of real worth and respectability. 
His position is found out by those who want to use him. 
He is for sale to the highest bidder, either to defeat his 
own party by treachery, or to procure a nomination for any 
scoundrel who will pay for it. He has no politics of any 
kind. He has rascality to sell, and there are those who 
are willing to purchase it in order that they may traffic in 
it, and sell it themselves again, at a very high profit. For 
instance, the agents of Fillmore, or Scott, or Webster, 
come, to one of these ward politicians, and they make a 
contract with him to secure the majority of the ward. 
Sometimes he succeeds completely, and sometimes only 
partially, as there are other politicians as cunning and as 
mercenary as himself, who manage to get their names on 



132 ELECTIONS. [ch. ix. 

the ticket, and, acting independently of him, must have 
their price, whatever it is, particularly if they find they 
can turn the scale, and hold the destiny of the ward or 
district in their hand. Hence it is that when the public 
imagine that a ward has gone for a particular candidate — 
gone for Fillmore, or Scott, or Webster — they are asto- 
nished to find that they were deceived, when the final re- 
sult is declared, and it turns out to be the very reverse of 
what they had anticipated. The agents of the candidates 
see the purchasable delegates between the time of their 
election and the time that they elect the district delegate, 
or during tbat time — perhaps in the interval of taking a 
recess to " get a drink," or while leaving the room on some 
other emergency — and the matter is made " all right," and 
comes out to their satisfaction in the end, notwithstanding 
protracted ballotings, adjournments, and deceitful appear- 
ances of obstinacy. 

" Nor is it always with money that the delegates are pur- 
chased — the promise of a fat office has sometimes an 
equally potent and magic effect. But it is most frequently 
with money that the operations are transacted, on the 
principle that ' a bird in the hand is worth two in the 
bush,' or that the men for sale have no faith in the pro- 
mises or the success of the purchasing party. The sums 
of money thus given are incredible. We have heard of 
a case in one of the lower wards of the city, in which one 
man got, at the time of the late democratic district con- 
ventions, the enormous sum of two thousand dollars, out 
of which he said he bribed a majority of the delegates in 
the district, and kept the balance for himself. 

" The dangers to which this system may lead are appall- 



ch. ix.] ELECTIONS. 133 

ing to every true patriot who calmly and attentively con- 
siders its tendency and possible results. * * * 

" We do not say that any of these cases will ever be 
realised, but there is peril ; and the facility with which 
corruption is practised in the ward and district nomina- 
tions, show that it is not impossible on a larger scale, and 
where there would be actually fewer men to bribe. Every 
friend of these republican institutions, which were ce- 
mented by the best blood of our revolutionary ancestors, 
ought to lift his voice and use all his influence against this 
system, and strike at it where only it can be wounded 
effectually — in its first inception, in the ward primary 
elections. What are the remedies ? 

" In the first place, honest men ought to attend the 
primary elections, and not leave them in the hands of 
rowdies and scheming politicians ; and they ought always 
to vote for the best men. In the second place, there 
ought to be a registration established, by which no man 
could sail under false colours, or deposit a vote at a primary 
election, unless he belonged to the ward, and belonged to 
the party to which he professed to belong; and the in- 
spectors of the election ought to have the power to 
administer an oath to every voter, and perjury in such 
cases ought to be made as much a criminal offence as 
it would be in any legal proceeding. If this cannot be 
done, or, being done, does not check the evil, there is but 
one remedy remaining, and that is the stump nominations, 
or self -nominations, that prevail in the South and West. 
The primary elections, as carried on in this city, and in 
the North generally, may be for the convenience of party 



134 ELECTIONS. [ch.ix. 

and for the interest of politicians, but they are unknown 
to the Constitution; and when they threaten to subvert 
the very design of that Constitution, and to nullify our 
most cherished institutions, it is high time for the people 
to consider whether they ought not either to abolish 
them, or take them out of the hands of the wire- 
pullers into their own hands. They have the power, if 
they will only exert it ; and to this complexion it will 
come at last. Meantime, our political system, so beauti- 
ful and so free, and so well adapted to guard against 
despotism on the one hand, and the licentiousness of 
the mob on the other, is so abused and so perverted from 
its original design, as to become the source of public de- 
moralisation, the reproach of the United States, and the 
laughing-stock of the enemies of republican institutions 
all over the world." 

It appears then, from the ahove, that one of 
the principal remedies against corruption, in a 
State whose revised statutes of 1845—6 no- 
minally enact the secret ballot, is now consi- 
dered to be open voting! 

Neither can it be said that the above de- 
scription applies to New York only. It is 
expressly stated in the above extract (p. 133), 
that the same system is carried on "in the 
North generally;" an assertion which, as a 



ch. ix.] ELECTIONS. 135 

general proposition, no one acquainted with 
the subject will dispute, although there may 
be localities which are exceptions.* 

The stain of that disgraceful corruption 
which has been proved to exist in many of our 
smaller boroughs will, it is to be hoped, very 
soon be wiped from our constitutional system 
by the removal of some of the baser elements, 
and the addition to the constituencies of some 
that may be purer and better, and for which 
we have been sufficiently warned not (for the 
present, at least,) to look lower in the social 
scale. We may thus hope to continue to attain 
the great end of an elective system, namely, the 
finding the best men to govern the country. 

The almost equally disgraceful practice of 
intimidation, once largely resorted to in the 
counties, has so much given way before the 
increased enlightenment and independence of 

* It is said that a beginning has been made in some electoral 
districts in the State of New York to break through this system 
of managing the elections. It is heartily to be wished that it 
may become general, and that independence, property, high- 
mindedness, honour, cultivation, wisdom, and moral worth, will 
henceforward have more weight in the scale, as against mere 
numbers or those who use them. 



136 ELECTIONS. [ch. ix. 

the constituencies, that, as a general rule, they 
have no longer any need to raise the timid cry 
for the shelter of the "ballot. The stigma of 
public reprobation is rapidly putting an end 
to the few lingering attempts at that species of 
oppression. 

The only other points relative to the Houses 
of the Legislature of the United States which 
Mr. Justice Story touches upon, and which 
require a passing notice, are, that the time 
of their assembling is appointed for the first 
Monday in December in every year ; and 
that, according to the fifth and sixth sections 
of the first article of the Constitution, it ap- 
pears that the powers, rights, duties, and 
privileges of each House are in no important 
particulars different from those of our own 
Houses of Parliament. 



ch. x.] PAYMENT OF MEMBEES. 137 



CHAPTER X. 



PAYMENT OF MEMBEES. 



The sixth section of the first article of the 
Constitution provides that " The Senators 
and Representatives shall receive a compen- 
sation for their services, to be ascertained by 
law, and paid out of the United States' Trea- 
sury." 

The arguments urged at the time of intro- 
ducing this clause, referred to the ancient 
practice of England ; the last known case of 
a Member of Parliament having received 
" wages " from his constituents being that of 
Andrew Marvell, M.P. for Hull, in the first 
Parliament after the Restoration. Mr. Justice 
Story also recapitulates the various reasons 
which seemed to justify the introduction of 



138 PAYMENT OF MEMBERS. [cm x. 

the practice into the Legislature of the United 
States ; but the inclination of his own opinion 
evidently is that the highest dignity, indepen- 
dence, and ability in the discharge of legisla- 
tive functions can be more certainly obtained 
without pecuniary compensation than by means 
of it. He adverts to the fact that " the prac- 
tice of England abundantly showed that com- 
pensation was not necessary to bring into 
public life the best talents and virtues of the 
nation."* And whatever may have been the 
presumed necessity or policy of such a prac- 
tice in the infancy of the institutions of 
the United States, when their population was 
comparatively scanty, and the means of ac- 
quiring an honourable independence much 
more restricted — (although the numbers pos- 
sessing the opportunities of high mental culti- 
vation were, even then, not few) — the same 
considerations cannot now apply to an adult 
nation, teeming with wealth and overflowing 
with intelligence; and it appears to be not 
improbable, from the current of public discus- 

* §§ 853. 855. 



ch. x] PAYMENT OF MEMBERS. 139 

sion upon this, by far the most delicate and 
disagreeable subject to touch upon in the 
whole range of their institutions, that the 
dissatisfaction openly expressed at the details, 
if not yet very openly directed against the 
principles of their present practice in this 
particular, will gather strength, and, before 
many years are passed, produce some im- 
portant modifications of it. 

The scale of payment to members has un- 
dergone various alterations. By an Act of 
22nd of September, 1789? which continued in 
force to March, 1795, the payment was, to 
both senators and representatives, six dollars 
per working day, *. e. during their actual at- 
tendance on their legislative duties, and six 
dollars for every twenty miles travelled to 
and from the place of the meeting of Con- 
gress. In 1795 the payment to senators was 
raised to seven dollars ; in March, 1796, it 
was again fixed at six dollars for both. In 
March, 1816, it was enacted that, "instead of 
the daily compensation now allowed by law, 
there shall be paid annually to the senators, 



140 PAYMENT OF MEMBERS. [ch. x. 

representatives, and delegates from territories, 
to the President of the Senate, pro tempore, 
and to the Speaker of the House of Repre- 
sentatives, 3000 dollars ; and to each senator, 
member of the House of Representatives, and 
delegate, 1500 dollars." This Act was re- 
pealed on the 9th of February, 1817- It is 
now fixed, by the Act of the 22nd of January, 
1821, at eight dollars a day to both senators 
and representatives, and eight dollars for every 
twenty miles travelled ; and to the President 
of the Senate, pro tempore, (in case of there 
being no Vice-President of the Republic, who 
is ex officio President of the Senate,) eight dol- 
lars a day additional. 

A proposition was last year brought before 
the Senate, by one of its committees, to change 
the mode of compensation from eight dollars 
per working day to 2000 dollars per year, 
without reference to the number of days that 
a member might be engaged in his legislative 
duties. 

This, no doubt, would be a more dignified 
manner of assigning the stipend, and would 



CH.x.] PAYMENT OF MEMBERS. 141 

relieve members of both Houses from the im- 
putations continually heaped upon them by 
the public press, that they wilfully prolong 
business for the sake of adding to the number 
of days for which they may claim their salaries. 
But the yearly amount proposed by that com- 
mittee did not satisfy public opinion " out of 
doors." It was urged that the annual pay- 
ments ought to be, for the President, 50,000 
dollars a year (instead of 25,000 as at pre- 
sent) ; each cabinet minister 10,000 (instead 
of 6000) ; each senator, 6000 ; and each 
member of the House of Representatives, 
5000. It was argued that, with so many 
means as now existed of making fortunes, by 
the application of ordinary talents and industry 
in any one of the various careers of life, it was 
not to be expected that men of the first quali- 
fications would give themselves to the service 
of the republic for eight dollars per working 
day ; that at the present rate of living, and 
considering the unavoidable expenses of a 
member of Congress at Washington and else- 
where, it was not probable that members in 
general would be satisfied with that sum. 



1 42 PAYMENT OF MEMBERS. [oh. x. 

Hence it has arisen— and it is a matter too 
notorious in the United States to make any 
reluctance necessary in referring to it here — 
that accusations without stint or measure are 
launched against a considerable proportion of 
the members of both Houses of Congress, to 
the effect that, in order to make up such in- 
comes as will enable them to live in the man- 
ner they think requisite, they accept money 
payments from persons interested in questions 
before the Legislature, to give their especial 
attention to such questions. 

It is not necessary to impute corrupt mo- 
tives to the members who thus allow them- 
selves to become paid agents for the prosecu- 
tion of claims, or the advancement of measures 
upon which they have also to decide in their 
deliberative capacity, in order to show how 
completely their conduct is a descent from the 
high position which the theory of their Con- 
stitution and the expectations of its framers 
claimed for it. That it is a departure from 
the first principles of a representative and 
deliberative body, is too obvious to need any 
comment. 



ch. x.] PAYMENT OF MEMBEES. 143 

Neither, if corrupt motives are very freely 
imputed in the United States to such members 
(as is the well-known fact), do I desire to use 
that fact for the purpose of invidiously con- 
trasting it with the general character of our 
own Legislature. Unhappily, the history of our 
railway legislation has left stigmas behind it 
which we should be glad to forget. And the 
circumstance that there always have been con- 
stituencies not very particular as to the moral 
qualities or the independence of the candi- 
dates of their choice, is sufficient to account 
for the degree of corruption that, in one form 
or another, is not unknown in the House of 
Commons. A marked distinction, however, 
between our system and that of the United 
States must not be forgotten, namely, that 
under their Constitution the frequency of elec- 
tions, the very great diffusion of the franchise, 
and the payment of their members of both 
Houses, cause a class of men to be sent to 
the National Legislature, the majority of whom 
are not possessed of independent means suffi- 
cient to enable them to dispense with those 



144 PAYMENT OF MEMBERS. [ch. x. 

extraneous and unrecognised sources of emo- 
lument which are inconsistent with their posi- 
tion and character, should a low estimate 
of either happen to second the temptation ; 
whereas, under ours, the vast preponderance 
among* the members of the House of Com- 
mons of men of either hereditary or acquired 
wealth, or of competence honourably achieved 
and maintained, materially contributes to dif- 
fuse and preserve a high tone of feeling 
and of principle, which reduces the corrupt 
elements to exceptions ; which is ever on 
the watch against their increase ; and which 
despises and repels, though it may some- 
times be obliged by political necessities to 
use them. And as regards the House of 
Lords, seldom indeed does even the voice of 
slander assail the honesty and independence of 
any one of its members. The extreme rarity 
— even during the moral contagion of the rail- 
way mania — of any instances in which mem- 
bers of that House were known to have made 
a discreditable use of their position for their 
own private advantage, was a proof of the 



ch. x.] PAYMENT OF MEMBERS. 145 

general soundness of a body whose soul is 
honour. 

I might, from the materials in my posses- 
sion, bring forward many facts in illustration 
and in proof, if need were, of the habit among 
members of Congress of receiving money for 
the transaction of business before the House, 
and for their support in favour of certain 
measures. I will confine mvself to one or two, 
which sufficiently describe the process ; and 
I will add an Act of Congress lately passed 
upon the subject. 

The following is an extract from a speech 

of Colonel Benton, an active member of the 

democratic party, and a personal friend of the 

present President, delivered just previously to 

the late presidential election. Colonel Benton, 

speaking of several measures which had been 

passed by Congress, of which he disapproved, 

said : — 

" The root of all this vicious legislation, and the oppro- 
brium of our government, is a new power which has grown 
up at Washington, and which performs for legislation 
pretty much the same favour which caucuses and conven- 
tions perform for elections, that is, takes it out of the 

H 



146 PAYMENT OF MEMBERS. [ch. x. 

hands of the people's representatives, and puts it into the 
hands of self-constituted managers. These are the class 
of agents, now multiplied to scores, and organised into a 
body, and supplied with all the means of conciliating mem- 
bers or combining interests. These guard the halls of 
legislation, and create interests strong enough to carry 
through bad measures, and to embargo the good, unless 
they consent to lend a helping hand to the bad. I am 
told the way now to get any large bill through Congress 
for a claim, or a contract, or even for a just grant of rail- 
road land, is to apply to one of these agents as the effective 
man (members of Congress being considered quite secon- 
dary), arrange with him, and, like a good grand-juryman, 
keep your own and your fellow's counsel. The great game 
of ' log rolling'* then begins, and a mass of conglomerated 
measures pass easily, many of which could get no support 
alone. To lend a hand at a pinching vote — to get out of 
the way at a pinching vote, now becomes the duty of the 
mollified members, and negative votes absent, often 
answer the purpose as well as positive ones present. * * 
It was the view of such proceedings as these which in- 
duced the representative from North Carolina (Mr. Ve- 
nables) to say in a speech at Kichmond, Virginia, that 
' with money enough any bill might be carried through 
Congress.'" 

Thus much for the general notoriety of the 

fact. It is necessary to justify such accusations 

by a particular instance. 

* " Log-rolling," means, " Help me in my job, and I will help 
you in yours." — Notes on Public Subjects, p. 123. 



ch. x.] PAYMENT OF MEMBEES. 147 

About three years ago a Dr. Gardiner 
brought forward before a committee of Con- 
gress claims to a large amount against the 
United States Treasury, which were allowed. 
It afterwards appeared, on investigation before 
a special committee of the House of Repre- 
sentatives, of which Mr. Preston King was 
chairman, that this testimony was forged. 
Senator Corwin was stated to have prosecuted 
those claims until he became Secretary of the 
Treasury ; and another Secretary, Mr. Craw- 
ford, was publicly accused of being impli- 
cated in these transactions. The result of 
the investigation w 7 as, that the committee of 
the House of Representatives accompanied 
their report by a Bill, which very soon after 
passed into a law, a copy of which, to obviate 
all misapprehensions, I give entire in the Ap- 
pendix. 

The New York Evening Post of March 
4, 1853, thus describes this Act, which passed 
on the 26th of the preceding month : — 

" It punishes with fine and imprisonment any officer of 

H 2 



148 PAYMENT OF MEMBERS. [ch. x. 

the United States Government, or member of either 
branch of Congress, and all persons in their official em- 
ploy, who shall assist in the prosecution of any claim 
against the Government, except in the discharge of their 
official duties. * * 

" It visits with like penalties, and also disqualifies for 
holding any public office, any person who shall give, and 
any member of Congress, or officer of the United States 
Government who shall receive, any gratuity or favour of 
any description designed to influence their votes or official 
action. * * 

" While we profess our deep sense of the importance of 
this law, and the special obligations of the country to Mr. 
King, by whom it was reported, and through whose exer- 
tions and personal influence more than any other cause it 
was enacted, we cannot forbear expressing our mortifica- 
tion and regret that the necessity for any such legislation 
existed ; that it has become necessary to threaten cabinet 
ministers with the penitentiary to keep them from pecu- 
lation, and that members of Congress have been compelled 
to arm themselves with the heaviest penalties of the law 
against the temptations of their official position. * * 

"Our pen has never fashioned any satire half so cut- 
ting, nor any invective half so bitter as this law, by which 
Congress deliberately declares that a necessity exists for 
invoking the aid of the judiciary to protect the country 
from the corrupt practices of its own members, and of the 
executive branch of the Government." 

While the Act was, in the shape of a Bill, 



ch. x.] PAYMENT OF MEMBERS. 149 

under the consideration of the Senate, I find 
in the report of the proceedings of that hody 
for the 25th of January, 1853, that — 

" Mr. Hale, of New Hampshire, inquired whether the 
Bill covered the case of agents who were in the habit of 
daily exacting ' black mail ' from sailors and officers of the 
navy, to get business done before the Department or Con- 
gress ? He said that it had been shown under oath, that 
these men were in the habit of daily ' selling ' Congress for 
a price, and if the Bill did not cover such cases, he desired 
that it lie over for amendment. 

" Mr. Badger (who had charge of the Bill) said that ' the 
Bill did not cover what Mr. Hale desired, but he neverthe- 
less hoped that it would be passed for what it did cover.' 

" The Bill was then read a third time and passed." 

The system, therefore, of bribery of members 
of Congress through the instrumentality of 
" agents," as described by Colonel Benton, is 
not only stigmatised, and sought to be pre- 
vented, by an Act of Congress, but admitted 
to exist in cases not reached by that Act. 

Whether the one or the other mode, thus 
admitted to exist, by which certain members 
of Congress (and confessedly by no means a 
small proportion of them) add to the emolu- 
ments assigned to them by law as their daily 



150 PAYMENT OF MEMBERS. [ch. x. 

salary, can be put an end to by legislation, 
may well be doubted, inasmuch as it is plain 
that it is the direct result of a system, and not 
an occasional and exceptional phenomenon be- 
longing to the obliquity and the low estimate 
of what is rioht and dignified, of this or that 
individual. 

I should, nevertheless, be sorry to conclude 
this painful passage in the history of the 
working of the United States Legislature 
without pointing distinctly to the fact, that 
public opinion in that country has no difficulty 
in distinguishing between those members who 
lend themselves to these practices and those 
who do not ; inasmuch as both Houses are 
known to contain, as they have ever contained, 
men as incapable of such practices as any who 
exist in the world. 

I might very easily accumulate proofs in 
these pages of another fact, which the honest 
and dispassionate portion of public opinion in 
the United States admits — namely, that the 
general quality of the members sent to the 
national Legislature falls far short of the anti- 



ch. x.] PAYMENT OF MEMBERS. 151 

cipations formed of what would be the result 
of their constitutional system at the time of 
its formation. 

One extract will suffice, from a communica- 
tion addressed to a most respectable journal, 
and forwarded to me by a gentleman in the 
United States of the highest honour and cha- 
racter, and of the most ample means of judg- 
ing correctly. He accompanied it with an 
expression of regret that he believed it to be 
" every word true." It is as follows, a few ex- 
pressions being omitted which might give un- 
necessary pain :— 

" Consider, for one moment, the inevitable effects of our 
present style of politics. The quality of our politicians 
deteriorates most rapidly.* Write down a list of the 
twenty-five leading politicians of Washington's, Adams', or 
Jefferson's administration, and write opposite the names of 
our foremost twenty-five. . . . Have we not among our 
very foremost ' statesmen,' illiterate, shallow, noisy, boast- 
ful demagogues? ... It seems to me that the 
business of politics is getting to be done, more and more, 
by such persons ; that men of worth, dignity, and wisdom, 
more and more abstain from handling the political pitch 

* The Italics are in the original. See also note, p. 167. 



152 PAYMENT OF MEMBERS. [ch. x. 

which defiles ; that the apathy of the intelligent class, with 
regard to politics, has become almost complete." 

It is with no feeling of satisfaction that I 
record these and other facts and opinions re- 
garding the deviations of the United States' 
institutions from the ideal formed of them by 
their founders. What I have already adduced, 
and have yet to bring to notice, on competent 
and ample authority, will, I know, give pain to 
many persons in that country, and to some for 
whom I cherish the highest esteem and regard. 
But the interests of truth, in reference to this 
country, and especially to our colonies, require 
that minor considerations should not be allowed 
to interfere. It is now sixty-five years since 
the United States, in adopting a new, and, as 
she thought, a better, form of government, 
embarked on that unexplored sea ; and no one 
has, since 1834, essayed systematically to lay 
down her course, and to mark the currents 
on which she has drifted. It concerns the 
civilised world to know how she is faring on 
that voyage. It may have been one that she 
could not avoid ; and the course she has taken 



ch. x.] PAYMENT OF MEMBERS. 153 

mav have been the best for her. It is not 
ours, and we may be thankful that it is not. 
But we have too many reasons to be justly 
proud of our country, and grateful for the 
Providential guidance of centuries, which has 
brought it to what it is, to have any need to 
seek aliment for our pride from the miscalcu- 
lations or disappointments of our neighbours. 

I do not quote any of those reports of 
" scenes" in the Senate or in the House of 
Representatives which are before me. Their 
character is sufficiently known from the speci- 
mens which from time to time find their way 
into our own papers, They are invariably 
reprobated by the American press, with all the 
force of language that a deep sense of the dis- 
credit reflected by them upon their national 
Legislature can command. The best portion 
of the American press speaks of them in a 
manner, showing how painfully they w T ound 
the feelings of every man of cultivation and 
honour in the community. The individuals 
capable of such language and conduct in 
either House of Congress are asserted to be 

h 3 



154 PAYMENT OF MEMBERS. [ch. x. 

but few ; and the outrage to decency is re- 
sented by the rest by the strongest marks of 
disapprobation. Nevertheless, two circum- 
stances regarding them are conspicuous, and 
affect the character of the legislative assembly 
as well as that of individuals ; — first, that 
the grossest and most insulting language is 
often repeated by the parties to the dispute, in 
spite of all attempts of the chairman to stop 
it, and appears to continue as long as it 
suits the pleasure of the disputants ; next, 
that these mutual insults sometimes terminate 
without either the withdrawal of the offen- 
sive language on either side, or any attempt 
at explanation or apology ; and the House 
rises without, as far as appears by the public 
reports, any adequate endeavour to assert its 
own dignity by insisting upon either one or 
the other. 

We happily do not require, it is to be hoped, 
in this country, any warning as to the com- 
position of our Legislature, or the conduct of 
our parliamentary debates, deducible from 
such facts and examples as those above ad- 



ch. x.] PAYMENT OF MEMBERS. 155 

verted to. But there are portions of our em- 
pire where it is of the utmost importance to 
their future well-being that these, as well as 
ail the other lessons to be gathered from the 
experience of the working of the Constitution 
of the United States from its origin up to the 
present day, should be deeply considered and 
laid to heart. 

Our colonies are embarking, and some of 
the finest and greatest of them have embarked, 
on the dignified and ennobling career of self- 
government. It must be the fervent aspiration 
of every patriotic breast in this country that 
they may act their part well and wisely, and 
may reproduce in new and favoured scenes, 
and over vast extents of the earth's surface 
compared with which this small island is but 
a speck, those moral and intellectual qualities 
and that conduct which have made the name 
of Great Britain honoured among mankind. 
But they must follow in the paths of Great 
Britain as closely as differences of circum- 
stances will allow, if they would gather up the 
materials with which to form a moral, social, 



156 PAYMENT OF MEMBERS. [ch. x. 

and political fabric, which shall correspond in 
features and in strength to the one that has 
stood the test of many ages and of many trials. 
With the energy of youth, and a full share of 
its boldness, originality, and freedom, they 
will, if they are wise in time, combine that 
deference to experience which is among the 
first elements of real wisdom. It ought never 
to be forgotten by them, that without the 
nearest approaches which the circumstances 
of a new country may permit, to those social 
institutions which have formed the national 
character, and which make the British Con- 
stitution practicable at all, it will be of all 
things the most difficult to perpetuate that 
national character, and to preserve the great 
leading characteristics of that Constitution, in 
the true and genuine liberty it secures, in the 
moderation and justice which it enforces, and 
the high development of civilisation to which 
it leads. 

New South Wales has just adopted a con- 
stitution from which, with the modifications 
which a due regard to the future may sug- 



ch. x.] PAYMENT OP MEMBERS. 157 

gest, the best results may be expected. The 
great and magnificent province of Canada 
has made the most satisfactory progress in 
self-government, under a constitution in all 
essential respects very similar to our own. 
It is ardently to be hoped, for her own 
sake, that she may preserve it. There is 
clearly nothing either in the theory or in the 
practical working of the institutions of the 
United States, which should lead her to wish 
to take them in exchange for those she now 
possesses. A little more than sixty years have 
sufficed to bring about a wide departure from 
the theory of the United States' Constitution 
in many important particulars ; and it is pa- 
tent to the world, that those departures have 
lowered the estimate of the United States 
Legislature in the eyes of their most re- 
spectable citizens. Canada has laid the 
foundation of a constitutional system which 
time will only strengthen and improve, not 
impair, if she adheres to it. While the 
popular element is, or shortly will be, strong 
enough to satisfy the most ardent advo- 



158 PAYMENT OF MEMBERS. [ch. x. 

cate of popular rights and liberties, the pre- 
rogative of the Crown is represented to as 
great an extent as is consistent with the cir- 
cumstances of the country. If there be any 
value in the example and experience of Eng- 
land, it is impossible to deny, that it has 
been by the firm and judicious admixture and 
blending of both those powers, that our country 
has attained to that true liberty, and our 
Legislature to that character of dignity and 
ability, with which we have no reason to be 
dissatisfied. The vast resources of Canada 
are, under its entire freedom of action, being 
now developed with so much rapidity, and its 
wealth is accumulating so fast, that a compa- 
ratively short period only will elapse before 
the number of persons enjoying a high social 
position in the colony will be so much en- 
larged, as to afford a wide circle of choice to 
the Crown in constituting the Upper House 
of Legislature. There will be no want of 
persons who, by their abilities, their independ- 
ence, and their cultivation, will give dignity 
to that branch of the Legislature, while their 



ch. x.] PAYMENT OF MEMBERS. 159 

connection with all the material interests of 
the colony will prevent their being removed 
beyond the reach of popular sympathies. It 
is not too much to anticipate that such a body, 
in a country so abounding in all the materials 
of future greatness as Canada, would, before 
many years were passed, present, in conjunc- 
tion with the ability, skill, and energy of the 
Lower House, the spectacle of a Legislature, 
second only to our own in every quality that 
can command the esteem, and contribute to 
the self-respect and elevation of a people. Not 
therefore after sixty, but haply after more than 
six hundred years, her posterity may say — as 
the Roman did of old, and as we do now — 
" This framework has been knit together by 
the fortune and discipline of eight hundred 
years, and cannot be torn asunder without the 
destruction of those who would destroy it." * 

There is one other incident to the practice 
of the payment of a salary to members of the 

* Octingentorum annorum fortuna disciplinaque compages 
hsec coaluit, quae convelli, sine exitio convellentiuni, non 
potest. — Taciti Hist., Lib. iv. c. 74. 



160 PAYMENT OF MEMBEKS. [ch. x. 

Legislature, as shown by the example of the 
United States, which it is important should 
not be overlooked in Canada, namely, the 
unseemly disputes which are liable to arise 
between the two Houses on such questions as 
whether or not certain members have sent in 
charges for travelling expenses beyond what 
they can legitimately demand ; or whether or 
not members have attended to their legislative 
duties on days for which they have sent in 
their accounts as having done so ; questions, 
of which the least that can be said is, that 
they lower the position of both Houses in the 
eyes of the country. The following is the 
report of an occurrence in the Senate, taken 
from the ordinary report of the proceedings of 
Congress, published in the National Intelli- 
gencer, Washington, July 21, 1852: — 

"IN SENATE, 
"July 19, 1852, 

" DEFICIENCY BILL. 

" Mr. Hunter moved to take up Deficiency Bill, with 
the disagreement of the House of Kepresentatives to the 
amendment of the Senate, appropriating 20,000 dollars 
for mileage, pay, &c, of senators. 



ch. x.] PAYMENT OP MEMBEKS. 161 

" Mr. Hunter urged, among other arguments to induce 
the House of Representatives to agree to rescind their 
resolution, and allow this money to he paid to the senators, 
that it was in the power of the Senate, if it pleased, to 
retaliate, by causing the law to be enforced ' which forbids 
any member from receiving his pay except on those days 
on which he is actually in attendance.' Mr. Hunter pro- 
ceeded thus : — ' We know very well that this rule is not 
observed ; and suppose that with this knowledge we were 
to move to cut down the appropriation for their pay, upon 
the plea that much of it was for time when they were 
absent from duty, and therefore not entitled under the law, 
would they not have cause to complain of us ? ' " 

It will be strange, indeed, if Canada — after 
sixty years of perseverance in her present con- 
stitution — after the continuance for that period 
of the great increase in her wealth and well- 
being, of which she has every prospect — and 
after as many years' growth in all those sym- 
pathies and habits, and in that intellectual 
culture, which assimilate the best part of her 
population so much to that of this country — 
should be called upon to contemplate in either 
of her Houses of Legislature a scene so little 
in accordance with the sense of propriety of 
high-minded and independent men, as that 
above recorded. 



162 PAYMENT OF MEMBERS. [ch. x. 

The constituencies and representatives of 
Canada, in this early portion of their career of 
self-government, have a great responsibility 
before them. If views derived from circum- 
stances which, with the present great prospects 
of that country, must be but temporary, do not 
prevail to alter the present foundations of her 
Constitution, and approximate it more to that 
of the United States, there can be no reason- 
able doubt that persons now living may see 
the day, when the material greatness of Canada 
will be only equalled by the moral dignity of 
her Legislature, and the high example and re- 
nown of her statesmen in both Houses of her 
Provincial Parliament. 

It is somewhat singular that the very clause 
in the Constitution of the United States, which 
was looked to by its founders and defenders 
as the most admirable security against venality 
and undue influence,* should in practice have 
proved the very one which experience has 

* The 2nd clause of the 6th section of Article 1 ; Tucker's 
Blackstone, App. 198, 214, 215, 375 ; Rawle on the Constitu- 
tion, chap. xix. 



ch. x.] PAYMENT OF MEMBEBS. 163 

shown to have facilitated and encouraged it. 
By the section alluded to it is, among other 
things, provided that "no person holding any 
office under the United States shall be a mem- 
ber of either House of Congress during his 
continuance in office." On this clause Mr. 
Justice Storv remarks :* — 

" The heads of departments are in fact thus precluded 
from proposing or vindicating their own measures in the 
face of the nation in the course of debate ; and are com- 
pelled to entrust them to other men, who are either im- 
perfectly acquainted with the measures, or are indifferent 
to their success or failure. Thus, that open and public 
responsibility for measures, which properly belongs to the 
executive in all governments, and especially in a republican 
government, as its greatest security and strength, is com- 
pletely done away. The executive is compelled to resort 
to secret and unseen influence, to private interviews and 
private arrangements, to accomplish its own appropriate 
purposes; instead of proposing and sustaining its own 
duties and measures by a bold and manly appeal to the 
nation in the face of its representatives. One consequence 
of this state of things is, that there never can be traced 
home to the executive any responsibility for the measures 
which are planned and carried at its suggestion. Another 
consequence will be (if it has not yet been), that measures 

* § 869. 



164 PAYMENT OF MEMBERS, [ch. x. 

will be adopted or defeated by private intrigues, politi- 
cal combinations, irresponsible recommendations, by all 
the blandishments of office, and all the deadening weight 
of silent patronage. The executive will never be compelled 
to avow or to support any opinions. Its ministers may 
conceal or evade any expression of their opinions. It will 
seem to follow, when in fact it directs, the opinions of 
Congress. It will assume the air of a dependent instru- 
ment, ready to adopt the acts of the legislature, when in 
fact its spirit and its wishes pervade the whole system of 
legislation. If corruption ever eats its way into the vitals 
of this republic, it will be because the people are unable 
to bring responsibility home to the executive, through its 
chosen ministers." 

It is notorious that the working of this sys- 
tem was never more distinctly illustrated than 
during the negotiations between Canada and 
the United States at their commencement two 
or three years ago. The Legislature of Canada 
was prepared to enter upon a system of re- 
ciprocal free-trade, to a certain extent and on 
certain conditions, with the United States ; and 
the Canadian ministry accordingly laid their 
propositions in due course before the United 
States Government. For the course of policy 
indicated by those propositions the ministry of 
Canada were responsible, and took upon them- 



ch. x.] PAYMENT OF MEMBERS. 165 

selves to carry them through the Canadian 
Parliament. This they both could and would 
have done ; or in the improbable alternative 
of not being supported in their policy by the 
Legislature, they would have resigned their 
offices, and given way at once to the party 
commanding the legislative majority. Thus 
the will of the Legislature would have been 
acted upon either way, without procras- 
tination, and in the open face of day. 
But as there is neither in the president, 
nor in the Legislature, nor in the ministers 
of the president at Washington, that direct 
and open responsibility for the policy of the 
Government, the negotiations could not be 
brought to the point at which a decision could 
be taken. The impatience of the public in 
Canada at the delays that ensued, obliged the 
ministry to take a course of their own, and to 
bring forward measures in the provincial Par- 
liament of such a nature as alone could force 
on a decision on the part of the Government 
of the United States. The questions are still 



166 PAYMENT OF MEMBERS. [ch. x. 

under discussion, having passed, together with 
other points referring to the whole of the 
North American colonies, from the Canadian 
into the hands of the imperial ministry. 

Mr. Justice Story agrees* that " one other 
reason in favour of allowing the heads of de- 
partments seats in the Legislature is, that it 
would compel the executive to make appoint- 
ments for the high departments of Govern- 
ment, not from personal or party favourites, 
but from statesmen of high public character, 
talents, experience, and elevated services ; 
from statesmen who had earned public fa- 
vour, and could command public confidence." 
But these were just the reasons why the jea- 
lousy of high distinction, so conspicuous in 
republics, excluded such men from seats in 
the Legislature.f And of this circumstance in 
their history, Niebuhr speaks with all the 
authority due to his great name, his un- 
bounded learning, and calm judgment. At 

* § 870. f § 869. 



ch. x.] PAYMENT OF MEMBERS. 1 67 

vol. iii. p. 118, of his "Life and Letters," 
(London, 1853), he says: "The segregation 
of the public servants, and their exclusion from 
the Legislature, was the highest pitch of revo- 
lutionary madness." 

[In reference to the passage quoted in page 151, it may 
be well to add that M. De Tocqueville made the same re- 
mark in 1834. He states, in vol. ii. ch. 5, of his work, 
" II est evident que la race des hommes d'Etat Americains 
s'est singulierement rapetissee depuis un demi siecle." 

He attributes it (ch. 7) "to the ever-increasing action of 
the despotism of the majority."] 



168 THE PKESIDENT'S NEGATIVE. [oh. xi. 



CHAPTER XL 

THE PRESIDENT'S NEGATIVE.* 

It is a remarkable fact that the power and 
influence of the President of the United States 
upon the ordinary course of legislation, is far 
greater than can by any possibility be exercised 
by the Crown in this country. 

Although, by the Constitution, the Presi- 
dent's negative is only of a suspensive cha- 
racter, in point of fact it has been exercised 
with success, on important public measures, 
eleven times in sixty years, by four different 
Presidents. 

* Article 1, sec. 7, clauses 2, 3. I omit a question previously 
touched upon by Mr. Justice Story — the right of the Senate to 
alter money bills. The constitutional practice of that country 
rests upon different grounds from our own, and is so settled in 
both countries, that no practical object would be answered by 
the discussion. 



ch. xi.] THE PRESIDENT'S NEGATIVE. 169 

Mr. Justice Story admits* that the evils to 
be apprehended from a legislative body con- 
stituted as is that of the United States, are 
those which may arise from temporary excite- 
ments, from precipitancy, from political hos- 
tility, from faction, and unconstitutional legis- 
lation ; and he says that the negative of the 
President is an important power, as an addi- 
tional security against the enactment of rash, 
immature, and improper laws. The course 
of proceeding, as laid down by the first article 
of the Constitution (sec. 7, clause 3), is to the 
effect that if any objections made by the Pre- 
sident to any bill are approved of by two- 
thirds of both Houses, the amended bill be- 
comes law. By clause 3, if a bill, negatived 
by the President, is repassed by two-thirds of 
both Houses, it becomes law, the negative 
being thus overruled. " Right or wrong, he 
can be overruled by a vote of two-thirds of 
each House. If his objections be not thus 
overruled, the subject is only postponed, and 
is referred to the States and the people."t 

* § 885. f President Polk's Message of 1848. 

I 



170 THE PRESIDENT'S NEGATIVE. [ch. xi. 

President Washington on one occasion exer- 
cised this constitutional power. President 
Jackson, in 1880, vetoed a bill for applying 
the funds of the Union to local improvements ; 
and in 1832 placed his veto on a bill for 
renewing the Charter of the United States 
Bank. In 1841 President Tyler twice exer- 
cised his veto against bills for establishing a 
national bank ; and in 1842 he three times 
exercised this power (twice against bills for 
altering the tariff). Four of these instances 
occurred within fifteen months, and against 
the advice of his Ministry. They were followed 
by an angry remonstrance from the Senate, and 
a protest on his part against that remonstrance. 
President Polk states in his last message (1848) 
that he had exercised his veto three times. 
He justifies the use he made of this constitu- 
tional power, and adds, that, in his opinion, — 

"There is more danger that the President, from the 
repugnance he must always feel to come in collision with 
Congress, may fail to exercise it in cases where the pre- 
servation of the Constitution from infraction, or the public 
good, may demand it, than that he will exercise it unneces- 
sarily and wantonly." 



ch. xi.] THE PRESIDENT'S NEGATIVE. 171 

Considering the vast patronage in the 
hands of the President, which Mr. Justice 
Story adverts to as having " some tendency to 
create a counteracting influence in aid of his 
independence * (an assertion which he cer- 
tainly need not have qualified by the word 
"some"), and considering also the principle 
of the payment of members and all that it has 
been shown to involve, including the com- 
plaints at its inadequate amount, it is abun- 
dantly clear that, in the ordinary course of 
things, the exercise of that patronage enables 
the President to cause the essential measures 
of the Government to pass through Congress, 
and permits him to mould or defer others which 
may not be in accordance with his views of 
policy. Thus he is able, though the general 
course of his policy may be disapproved of by 
both Houses of Legislature, to pass the sup- 
plies, and to wield for the term of his office the 
whole power of the Government. This was 
the case with President Tyler, who was at 
variance with the Senate during nearly the 

* § 882. 

I 2 



172 THE PKESIDENT'S NEGATIVE. [ch. xi. 

whole course of his administration, And the 
latest and most notorious instance has only 
ceased with the last presidential election ; the 
former President and his Ministry having been 
of the " Whig" party, and yet having suc- 
ceeded in carrying on the government for four 
years in the face of a democratic majority 
against them, both in the House of Representa- 
tives and in the Senate. The President is also 
generally able to soften, or modify, or finally to 
suppress altogether, bills that may be adverse 
to his course of policy, or, in his opinion, pre- 
cipitate, unwise, or dangerous, so that they 
may never be brought before him in such a 
shape as to call upon him, in obedience to his 
sense of public duty, to exercise his negative 
upon them. 

But the President's negative would be 
of no avail should public opinion be roused 
upon any point to such a degree as to 
oblige two-thirds of both Houses of Con- 
gress to take part against him. Patronage 
and influence would then be alike overborne, 
and possibly at the very moment, and on the 



ch. xi.] THE PKESIDENT'S NEGATIVE. 173 

very questions, when the truest regard for 
the general and permanent interests of the 
country would have required that a check 
should be placed upon the popular feeling of 
the moment. Then would be seen that weak- 
ness in the Executive of the United States 
which M. De Tocqueville has commented upon 
in reference to this as well as other portions of 
his ministerial character, and which reduces 
him, in times of excitement, to the position of 
"a mere agent of the popular will."* 

The President of the United States com- 
bines in himself the two functions which be- 
long in this country to the Crown and to the 
Prime Minister. In the exercise of the latter 
function he can, as has been seen, carry on 
the Government for a term of four years ac- 
cording to a policy which is disapproved of by 
the majority of both Houses of Legislature, 
and in every step of which they would be 
compelled to oppose him if they acted upon 
their convictions and their acknowledged prin- 
ciples. In the exercise of his higher function, 

* De la Democratic en Amerique, vol. i. ch. 8. 



174 THE PRESIDENT'S NEGATIVE. [ch. xi. 

as the Executive of the State, he is armed with 
patronage, which, in ordinary cases, enables 
him so to regulate the course of legislation as 
to prevent the necessity of his having recourse 
to his power of negativing the measures of a 
hostile Legislature, but which power is liable 
to fail him at moments, when, in his opinion, 
there is the most need to use it. 

On a comparison of the two systems, even 
from the point of view most in accordance 
with popular sympathies, it cannot be said 
that we have any reason to complain of our 
own. It is too obvious for remark, that no 
minister in this country can, under ordinary 
circumstances, retain office an hour after he 
has ceased to be supported by the majority of 
the House of Commons. The patronage in 
the hands of the Government is too small to 
enable him to do more (and then only at a 
time when parties should happen to be nicely 
balanced) than delay his fall. He must stand, 
if at all, upon the broad basis of his open and 
acknowledged policy, and when this ceases 
to be in unison with the opinion of the 



ch. xi.] THE PKESIDENT'S NEGATIVE. 175 

House of Commons and the country, he must 
give way to some one else. That opinion may 
be somewhat more slow in forming and de- 
claring itself, than the public opinion as re- 
presented in the Legislature of the United 
States ; but it is only more slow because 
more anxious to reflect the matured wis- 
dom of the community, and not its impulses. 
And when that opinion is once declared, it is 
seldom indeed that it is not final. Against 
any measure brought forward by a minister so 
supported, and upon the responsibility of the 
Government of the day, the Crown would 
never venture, except in some very extreme 
case, to interpose its negative. If it did, it 
would be by no exercise of " patronage," 
which it now possesses in so scanty a measure 
as to be almost inappreciable in reference to 
public afFairs ; it would be by no indirect 
" influence," which it has no means of bring- 
ing to bear upon the course of legislation, that 
it would seek to support itself. It would be 
by an appeal, which the act would indicate, to 
the intelligence and the justice of the nation, 



1 76 THE PRESIDENT'S NEGATIVE. [ch. xr. 

which appeal would be all the more impres- 
sive and solemn because resting on no other 
ground than that of high constitutional prin- 
ciple. It may be anticipated that the good 
sense of the nation may prevent such an 
appeal from being ever necessary. The con- 
stitutional negative of the Crown is a power, 
to use the words of Burke, " the exercise of 
which is wisely forborne. Its repose may be 
the preservation of its existence, and its exist- 
ence may be the means of saving the Constitu- 
tion itself, on an occasion worthy of bringing 
it forth."* 

* Letter to the Sheriffs of Bristol, a.d. 1777. 

John Adams, afterwards the second President of the 
Republic, in his great work above quoted (vol. i. p. 70), ex- 
presses his "mortification" that the negative power of the 
Executive was imperfect, and the constitutional balance there- 
fore " incomplete." 

[President Polk, in his message of 1848, states that Washing- 
ton once exercised his veto, and that six Presidents have done 
so. I have been unable to ascertain all the occasions.] 



ch. xil] THE PKESIDENT'S MESSAGE. 177 



CHAPTER XIL 

THE PEES1DEWS MESSAGE. 

We are familiar in this country with the 
lengthy document presented to both Houses of 
Congress by the President of the United 
States, at the opening of every new Session. 
This document, called the President's "mes- 
sage," contains, among other matters, an expo- 
sition of the opinions and intentions of the 
President and his ministry, in regard to the 
principal public questions of the day. 

It might naturally, therefore, be expected, 
that this message would be immediately taken 
into consideration by each House, in order, 
first, that a respectful acknowledgment might 
be given to the head of the State for his com- 
munication, and next, that an opportunity 
might be afforded for expressing at once, if 

I 3 



178 THE PRESIDENT'S MESSAGE. [ch. xil 

need were, the concurrence or disapproval of 
either House in the general course of policy 
indicated by the message. And it may very 
well arise in that country, as it occasionally 
does in this, that the interests of the public 
may require an immediate expression of 
opinion on the part of the Legislature, as to 
whether it will support or oppose the policy of 
the ministry. 

But to the President's message no answer is 
returned, and no discussion takes place upon 
it. 

Under the two first Presidents of the Re- 
public the practice was otherwise ; and was, 
in fact, the same as our own. Mr. Justice 
Story thus describes the change, and records 
his opinion that it has not been for the public 
advantage. 

"Under President Washington and President John 
Adams, the practice was to deliver speeches. President 
Jefferson discontinued this course, and substituted mes- 
sages ; and this practice has been since invariably fol- 
lowed. . . . When the habit was for the President to 
make a speech, it was in the presence of both Houses, 
and a written answer was prepared by each House, 



ch. xil] THE PRESIDENT'S MESSAGE. 179 

which, when accepted, was presented by a committee. 
At present, no answer whatever is given to the con- 
tents of the message. And this change of proceeding 
has been thought by many statesmen to be a change 
for the worse, since the answer of each House enabled 
each party in the Legislature to express its own views 
as to the matters in the speech, and to propose, by 
way of amendment to the answer, whatever was deemed 
more correct and more expressive of the public sentiment 
than was contained in either. The consequence was, that 
the whole policy and conduct of the administration came 
under solemn review ; and it was animadverted on, or de- 
fended, with equal zeal and independence, according to 
the different views of the speakers in the debate ; and the 
final vote showed the exact state of public opinion on all 
leading measures. By the present practice of messages, 
this facile and concentrated opportunity of attack or de- 
fence is completely taken away ; and the attack or defence 
of the administration is perpetually renewed at distant 
intervals, as an incidental topic in all other discussions, 
to which it often bears very slight or no relation. The 
result is, that a great deal of time is lost in collateral 
debates, and that the administration is driven to defend 
itself in detail, on every leading motion and measure of 
the session."* 

It is probably not difficult to account for the 
change of practice, although Mr. Justice 
Story passes from the subject without further 

* § 895. 



180 THE PKESIDENT'S MESSAGE. [ch. xir. 

comment. The fact is, that no " final vote " 
of either House of Legislature upon "the 
policy and conduct of the administration," to 
which Mr. Justice Story refers, would have 
any necessary effect in compelling the President 
to change that policy. It might bring out very 
glaringly to public notice the circumstance, 
that the Legislature and the President were at 
variance upon the general policy of his govern- 
ment ; but it would not oblige him to dismiss 
his ministry, or to vary his policy in any one 
particular. The " patronage " in the hands of 
the President, and his " influence," would most 
probably enable him to carry on the ordinary 
affairs of government during his four years 
of office. All his favourite measures might, 
indeed, be rejected, but at the same time his 
" influence" might be sufficient to prevent mea- 
sures, adverse to his policy, being forced upon 
him. The late Whig President, Mr. Filmore, 
and his ministry, were in favour of Protective 
duties. They were not able to carry their 
policy into effect ; but during four years they 
prevented the contrary policy, which was that 



ch. xn.] THE PRESIDENT'S MESSAGE. 181 

of the majority of both Houses of Congress, 
from being extended. Congress dissented from 
the policy of President Tyler, and rejected his 
measures ; but he found the means of car- 
rying on his government, in spite of their 
opposition to his general policy. We see, 
therefore, in this silent reception of the Mes- 
sage, another illustration of the fact that, under 
a democratic Government, the head of the 
State, wielding the powers of that Government, 
can for a period of four years counteract 
and effectually resist the popular opinion as 
expressed in its two Houses of Legislature. 
Supposing it possible, which it is not, that a 
parallel case should exist in this country, the 
ministry of the Earl of Derby would have re- 
mained in office until the 27th of February, 
1856, and the question of protection would 
have been still agitating the public mind in 
England. 

A common, though superficial, criticism 
upon the speeches delivered at the opening of 
each session of Parliament by the Crown, on 



182 THE PRESIDENT'S MESSAGE. [oh. xii. 

the responsibility of the ministry, is, that they 
are too short and too indefinite. 

If they are sufficiently definite to convey 
the announcement of the general principles of 
the ministerial policy, and of the measures it 
purposes submitting to the Legislature, they 
convey all that is required to enable either 
House, if it considers that the public interests 
require it, at once to declare itself hostile to or 
disposed towards that policy. To commit the 
Crown to details in any such announcement is 
obviously undesirable, inasmuch as the details 
of measures belong more particularly to the 
deliberative bodies by whom these measures 
will be fully considered. And it is equally 
obvious that the ministerial exposition, when 
the measure is presented to either House, can 
and does go much further into detail than any 
" message " can possibly do, however lengthy ; 
and at a time when it is most convenient for 
the purposes of discussion that those details 
should be laid before the House and the 
public. 



ch. xiii.] POWERS OF CONGRESS. 183 



CHAPTER XIII. 

POWERS OF CONGRESS. 

With two or three exceptions, the matters 
falling within the jurisdiction of Congress are 
the same as those that are within the province 
of the Legislature of this country. The first 
exception to be noticed respects the important 
article of taxation. In this the powers of 
Congress are limited. They extend only to 
the specific objects of " paying the debts and 
providing for the common defence and welfare 
of the United States" (sect 8, clause 1). "A 
tax, therefore, laid by Congress for neither of 
these objects would be unconstitutional, and 
in excess of its legislative authority."* The 
power of taxation for all other purposes except 
those mentioned remains in the several State 

* Story, § 908. 



L 



184 POWERS OF CONGRESS. [ch. xra. 

Legislatures. In the adjustment of these powers 
between the general Government and that of 
the different States many questions arose, which 
are discussed at length by Mr. Justice Story, 
but they have little practical hearing beyond 
the limits of that country. 

The more important exception in a general 
point of view relates to the power of declaring 
war. This power, which with us is the exclu- 
sive prerogative of the Crown, is placed by 
the Constitution of the United States in the 
hands of Congress. By the article above 
quoted Congress is empowered "to declare 
war, grant letters of marque and reprisal, and 
make rules concerning captures on land and 
water." 

The object in view, according to Mr. Justice 
Story, in placing the power of making war in 
the hands of the two Houses of Congress, 
instead of intrusting it to the President, was 
" to make it more difficult to declare war." 
" War being in its nature and effects so cri- 
tical and calamitous, it requires the utmost 
deliberation, and the successive review of all 



ch. xih.] POWERS OF CONGRESS. 185 

the councils of the nation."* It was pro- 
posed at the time of the framing of the Con- 
stitution, that as promptitude of action, as 
well as wisdom, were required on such critical 
occasions as may justify war, it would he more 
expedient to place the power of declaring it 
in the Senate alone ; a body composed of men 
of great " weight, sagacity, and experience." * 
But the argument prevailed that it would be 
desirable to interpose delay, by requiring the 
consent of the bodies more directly represent- 
ing the mass of the people, who would have to 
pay the taxes incident to war. 

Mr. Justice Story is of opinion that the 
restriction might have been usefully extended 
still further ; that " the Executive who is to 
carry it on" ought to have a voice in deter- 
mining whether it ought to be entered upon 
at all. And he adds, that "there might be 
a propriety in enforcing still greater restric- 
tions, as, by requiring a concurrence of two- 
thirds of both Houses ;■*'* for in his opinion 
" the history of republics has but too fatally 
* § 1171. 



186 PO WEES OF CONGRESS. [ch. xm. 

proved that they are too ambitious of military 
fame and conquest, and too easily devoted to 
the views of demagogues, who flatter their 
pride and betray their interests." .... 
Under such circumstances war " is sometimes 
fatal to liberty itself, by introducing a spirit of 
military glory, which is ready to follow wher- 
ever a successful commander will lead.' ,# 

It is continually asserted with great earnest- 
ness by persons who have the highest claims 
to respectful attention in the United States, 
— and their opinions are reflected in the most 
respectable portions of the press of that coun- 
try — that the tendencies of the public mind 
there are not towards "military fame and 
conquest," and that the ambition of military 
glory, and the readiness to be swayed by those 
who have obtained it, are not, to any dan- 
gerous extent, the characteristics of the mass 
of the people. That the persons who take 
this view do so in all sincerity, there can be 
no possible doubt ; and their hope is that 
their influence, and those ties of peace arising 
* § 1171. 



ch. xiil] POWERS OF CONGRESS. 187 

out of material interests, which are daily ex- 
panding, and embracing more and more per- 
sons in the community, will be sufficient in 
any time of real danger to counterbalance and 
restrain the aggressive tendencies of the more 
excitable portion of their fellow-citizens. 

Whatever may be the case in future, it 
cannot be said that the history of the past 
gives encouragement to any such hope. It is 
perfectly well known, and admits of no dis- 
pute, that both the Texan and the Mexican 
war were entered into against the opinions 
and in spite of the energetic warnings of a 
vast proportion of the most mature statesmen 
of the country, supported by the whole weight 
of that portion of the community above re- 
ferred to. But there is no need to go back 
even to those comparatively recent instances 
for proof of the aggressive tendencies of the 
people of the United States, considered as a 
whole, and judged of by the acts of their 
Government*. The whole of the exceedingly 
minute and elaborate despatch of the late 
Secretary for Foreign Affairs in that country, 



188 POWERS OF CONGRESS, [en. xin. 

Mr. Everett, on the subject of Cuba, dated 
1st December, 1852, and addressed to the 
Minister for Foreign Affairs in Great Britain, 
is devoted to proofs and illustrations of the 
fact that the public opinion of the United 
States has compelled the Government to ad- 
vance in that career of conquest and annexa- 
tion, the successive steps of which he at so 
much length describes. But Mr. Everett 
goes beyond that, and avows, in relation to 
the question then at issue, that any treaty 
entered into between the United States, 
France, and Great Britain, containing mutual 
engagements to respect the present state of 
possession of the Island of Cuba in all future 
time, would but give " a new and powerful 
impulse" to those acts of lawless aggression 
which the Government of the United States, 
though it had disavowed and discouraged them, 
had not been able to prevent. 

It cannot be a matter of surprise that Lord 
John Russell, as Secretary of State for Foreign 
Affairs, should, in his answer of the 16th of 
February, 1853, to Mr. Everett's despatch, 



ch. xiil] POWERS OF CONGRESS. 189 

have described the above argument and admis- 
sion as " disquieting." 

The attacks that had been made on the 
island of Cuba "by lawless bands of adven- 
turers from the United States, with the 
avowed design of taking possession of that 
island," had been, under various pretexts, for 
the most part openly justified by a large, 
powerful, and active portion of the press of 
that country, representing the opinions of the 
ultra-democratic party ; or, if condemned, 
condemned with such a quality of censure as 
implied, and in fact gave, encouragement to 
renewed efforts. One of the most common 
topics of justification was, that Great Britain 
and France were each intriguing to obtain 
a cession of the island from Spain, and that it 
was necessary to anticipate them by assisting 
the inhabitants to declare their independence 
of Spain, with the view to their then applying 
for admission into the Union. 

To prove to the world that the imputation 
of any such intrigue was groundless, the Earl 
of Malmesbury, then Secretary of State for 



190 POWEES OF CONGRESS. [ch. xm. 

Foreign Affairs, on the part of Great Britain, 
and M. de Turgot on the part of France, pro- 
posed to the Government of the United States, 
that they should " declare, severally and col- 
lectively, that they will not obtain, or main- 
tain for themselves, or for any one of them- 
selves, any exclusive control over the said 
island of Cuba, nor assume nor exercise any 
dominion over the same." 

Such a convention would manifestly give 
every security to the United States, that Cuba 
would never fall into the hands of either of 
the only two powers ever likely to be "rivals 
with the United States for the possession of it." 

But Mr. Everett, on the part of his Govern- 
ment, refused to enter into any such conven- 
tion, on two grounds. 

The first, by asserting " that Cuba is to the 
United States what an island at the mouth of 
the Thames or the Seine would be to England 
or France," seems to imply, in the words of 
Lord John Russell's despatch, " that Great 
Britain and France have no interest in the 
maintenance of the present status quo in 



ch. xiil] POWERS OF CONGKESS. ] 91 

Cuba, and that the United States have alone 
a right to a voice in that matter." 

To any such implied argument there could 
be but one answer, which was given by Lord 
John Russell in language which it is impos- 
sible to mistake. 

" Her Majesty's Government at once refuse to admit 
such a claim. Her Majesty's possessions in the West 
Indies alone, without insisting on the importance to 
Mexico and other friendly States, of the present distribu- 
tion of power, give Her Majesty an interest in this ques- 
tion which she cannot forego. The possessions of France 
in the American seas give a similar interest to France, 
which no doubt will be put forward by her Government." 

Mr. Everett's second ground for refusing to 
enter into the proposed convention was that 
above adverted to — namely, that by so doing, 
the Government of the United States would 
only strengthen the hands of the persons 
engaged in those violations of international 
law ; that, " instead of putting a stop to those 
lawless proceedings, this would give a new and 
powerful impulse to them." 

Upon this, Lord John Russell very truly 



192 POWERS OF CONGRESS. [ch. xiti. 

remarks, that this is " a melancholy avowal for 
the chief of a great State." 

The force of public opinion, which had 
compelled " the absorption or annexation of 
Louisiana in 1803, of Florida in 1819, of 
Texas in 1845, and of California in 1848," 
according to the enumeration of Mr. Everett, 
is now being brought to bear upon the ac- 
quisition of Cuba, by a powerful party in the 
United States, whose cry is, that it is the 
"manifest destiny" of their Government "to 
absorb the whole of that continent and the 
islands." 

The weakness of the Executive in the 
United States has rendered nugatory the at- 
tempts of the Government to prevent those 
lawless attacks upon Cuba, which it disavows 
and stigmatises. 

The Secretary for Foreign Affairs, Mr. 
Everett, while refusing on the part of his Go- 
vernment to take a step which would entirely 
deprive those lawless attempts of the principal 
argument on which they rely for their justifi- 
cation, assigns reasons for his refusal which 



ch. xiil] POWERS OF CONGRESS. 193 

give direct support to the idea, that the an- 
nexation of Cuba is to be looked upon as only 
a portion of the progressive increase of the 
possessions of the United States, without re- 
ference to the rights and interests of other 
powers; and that any act done by the Go- 
vernment of the United States with the view 
of repressing the march of lawless aggression 
towards that object, would only accelerate it, 
and diminish in proportion the authority and 
means of the Government itself, in support of 
the law of nations, and the principles of justice 
and good neighbourhood. 

If that be so, even the recommendation of 
Mr. Justice Story, that, in order to put a 
more effectual check upon the power of de- 
claring war, the concurrence of tw r o-thirds 
(instead of, as at present, a majority) of 
both Houses of Congress should be rendered 
necessary, would have but a slight chance of 
interposing an effectual barrier against views 
and expectations that make such little account 
of the rights of others. There can be but one 
effectual obstacle to such pretensions — namely, 

K 



194 POWERS OF CONGRESS. [ch. xiii. 

the knowledge of the fact, that the powers 
interested in maintaining those rights have 
both the strength and the will to cause them 
to be respected ; and that lawless aggression, 
however disguised, and however supported, 
will be met at once by a force capable of 
maintaining " the eternal laws of right and 
wrong," and inflicting punishment on those 
who violate them. # 

* Mr. Everett has, since he quitted office, taken the some- 
what remarkable course of addressing to Lord John Russell? 
and publishing in the American papers, a letter in answer to 
Lord John Russell's despatch, addressed to him as the Minister 
of Foreign Affairs of the United States. 

Upon this private letter, thus made public property, a public 
comment is justifiable. 

Mr. Everett states that his reference to the absorption or 
annexation of Louisiana, Florida, Texas, and California " was 
intended as an illustration of the proposition that the entire 
history of the United States shows it to be chimerical to 
attempt, in reference to specific measures, to bind up for all 
future time the discretion of a Government established in a 
part of the world of which so much is still lying in a state of 
nature." 

It may be asked, " Is Cuba in a state of nature 1 " and can an 
argument of this kind, equivocal with regard to the other 



a See also the Daily News of October 8, 1853, in which Mr. 
Everett's letter, occupying above two columns, is given entire. 



ch. xm.] POWERS OF CONGRESS. 195 

enumerated instances, be held in any respect applicable to 
this? 

Mr. Everett adduces this further justification of his line of 
reasoning : — 

"Nor does the remark in my letter of the 1st December, that 
a disposition to engage in such enterprises would be increased 
rather than diminished by our accession to the proposed con- 
vention, strike me as a ' melancholy avowal,' as you pronounce 
it, on the part of the President. You forget the class from 
which such adventurers are, in all countries, enlisted — the 
young, the reckless, the misinformed. What other effect could 
be expected to be produced on this part of the population by 
being told that their own Government, in disregard of the 
most obvious public interests, as well as of the most cherished 
historical traditions, had entered into a compact with two 
foreign powers to guarantee the perpetuity of the system 
under which Cuba now suffers?" 

Upon this it is to be observed, that to " the young, the reck- 
less, and the misinformed," as the prime movers of the lawless 
aggression against Cuba, are to be added members of both 
Houses of Congress, officers in the public employ of the United 
States, and no unimportant portion of the public press. 

It is further to be remarked, that it was no object of the two 
foreign powers "to guarantee the perpetuity of the system 
under which Cuba now suffers." The expressions of the 
Minister of Great Britain to the Spanish Government, quoted 
by Mr. Everett himself, show that the greatest efforts had been 
and were being made to produce an amelioration of that system. 
Lastly, it is to be noticed that Mr. Everett refers to " the most 
obvious public interests" of the United States as counselling 
abstinence from any such pledge as the one offered to her 
acceptance. 

On the latter point Mr. Everett is even more explicit in 
other paragraphs. He states that Lord John Russell miscon- 

K 2 



196 POWERS OF CONGRESS. [ch. xiii. 

conceived his meaning in understanding him to imply " that 
Great Britain and France had no interest in the status quo in 
Cuba." 

" Our doctrine is, not that we have an absolutely exclusive 
interest in the subject, but that we have a far deeper and more 
immediate interest than France or England can possibly lay 
claim to." " Therefore," he adds, " I do not see why we have 
not as good a right to obtain, if we can, from Spain, the volun- 
tary cession of Cuba, as Great Britain had to accept the com- 
pulsory cession of Trinidad." 

After such plain language as this, it is vain for Mr. Everett 
to expect to check the aspirations or the actions of those who 
desire to obtain Cuba at any cost, by the expression, in this 
same letter, of his individual opinion, " as a private citizen," 
as being adverse to its annexation ; " that he does not covet 
it." 

To the same real effect are the words of the late President, 
Mr. Filmore, in his message of 6th Dec, 1852. After disclaiming, 
on the part of the Government, any designs of the United States 
against Cuba, he adds that " he should regard its incorporation 
into the Union at the present time as fraught with serious peril." 
And the present President (Mr. Pierce), in his inaugural ad- 
dress, delivered in March, 1853 (see p. 228), has thrown off all 
disguise, and has proclaimed the policy to which his prede- 
cessor had already given an implied sanction. 

When men of the first position in the United States openly 
adopt, and while others in one breath condemn, and in the next 
encourage the idea of the annexation of Cuba, and speak of it as 
only a question of time, there will not be wanting other per- 
sons besides " the young, the reckless, and the misinformed," 
who will be ready to profit by such teaching. The greater or 
less amount of interest which the two countries may have in 
the matter, is not the question. It is sufficient that the in- 
terests of England are great and important in the whole of 



ch. xih.] POWERS OF CONGRESS. I97 

that quarter of the world. It is to be hoped that the day is 
far distant when she would look with indifference upon a blow 
aimed at the very least of them ; whether prepared by such 
means, covert and open, as ended in the annexation of Texas, 
or by bands of " lawless adventurers," whom the Executive of 
the United States is unable to control, or by persons of a very 
different stamp, whose actions are condemned in words, but in 
effect encouraged, by men lately responsible for the public 
policy of that country, and are now openly sanctioned by the 
President. 

It will be necessary to recur briefly to this subject in the 
next chapter, in illustration of the political position of the 
Executive. 



198 THE EXECUTIVE. [ch. xiv. 



CHAPTER XIV. 

THE EXECUTIVE. 

By the second article of the Constitution* 
the Executive power is vested in the President 
of the United States, who holds his office for 
the term of four years. 

The object to be aimed at in every well- 
organised Government, in respect to the Execu- 
tive, is correctly stated by Mr. Justice Story to 
be the securing as great an amount of energy 
as is consistent with the public liberties ; and 
he proceeds to remark that — 

" The notion is not uncommon, and occasionally finds in- 
genious advocates, that a vigorous Executive is inconsistent 
with the genius of a Kepublican Government."! 

To this he answers most truly, that — 

" It is difficult to find any sufficient grounds on which 
* Section 1, clause 1. t § 1417. 



ch. xiv.] THE EXECUTIVE. 199 

to rest this notion ; and those which are usually stated 
belong principally to that class of minds which readily 
indulge in the belief of the general perfection, as well as the 
perfectibility of human nature, and deem the least possible 
quantity of power, with which Government can subsist, to 
be the best. To those who look abroad into the world, and 
attentively read the history of other nations, ancient and 
modern, far different lessons are taught with a severe 
truth and force. Those lessons instruct them that energy 
in the Executive is a leading character in the definition of 
a good government. It is essential to the protection of the 
community against foreign attacks. It is not less essential 
to the steady administration of the laws — to the protection 
of property against those irregular and high-handed combi- 
nations, which sometimes interrupt the ordinary course of 
justice, and to the security of liberty against the enter- 
prises and assaults of ambition, of faction, and of anarchy. 
. . . . " A feeble Executive implies a feeble execu- 
tion of the Government. A feeble execution is but another 
phrase for a bad execution, and a government ill executed, 
whatever may be its theory, must, in practice, be a bad 
government." * 

He then lays it down that — 

" The ingredients which constitute energy in the Execu- 
tive are, unity, duration, an adequate provision for its sup- 
port, and competent powers. The ingredients which con- 
stitute safety in a republican form of government are, a due 
dependence on the people, and a due responsibility to the 
people."-}- 

* § 1417. f § 1418. 



200 THE EXECUTIVE. [ch. xiv. 

Montesquieu has said that " the executive 
branch of government, having need of de- 
spatch, is better administered by one than by 
many."* The best writers have invariably 
considered energy as the most necessary quali- 
fication of the Executive ; and that this 
energy, manifested in the qualities of " deci- 
sion, activity, secrecy, and despatch," will be 
best secured by placing the executive power in 
one hand rather than in many. 

The manner in which the executive power 
is adjusted under the British Constitution, as 
well as the practical efficacy of that power, 
present some striking contrasts with both the 
theory and practice of the United States. 

By the theory of our Constitution, our here- 
ditary Sovereign is invested with the power of 
the Executive. In the exercise of this power, 
the prerogatives of the Crown are known and 
respected, and it is a fundamental axiom that 
within the limits of those prerogatives the 
Sovereign " can do no wrong." Removed be- 
yond the sphere of popular interference and 

* Bk. ii. chap. vi. 



ch. xiv.] THE EXECUTIVE. 201 

control, by position, by the certainty and dura- 
tion of power and, in many important par- 
ticulars, in the exercise of that power, the 
Crown of Great Britain nevertheless, in all 
the ordinary concerns of government, acts, and 
practically can only act, through the instru- 
mentality, and on the advice and responsibility, 
of the Executive Council, composed of the 
principal Ministers of State. This Executive 
Council is not too numerous to fulfil the first 
requirements of a properly-constituted execu- 
tive authority, in the ability to act with decision, 
energy, secrecy, and despatch, in cases requir- 
ing those qualities. And owing the circum- 
stance of their being called upon to act at all 
(or at least of their continuing to act), to the 
fact of their also representing, and being sup- 
ported by, the majority of the Legislature, they 
combine, with the authority of the Crown, 
which is stable, uniform, exalted, and inde- 
pendent of popular influences, the power of 
the whole body of the community as expressed 
by the majority of both Houses of Parlia- 
ment. 

K 3 



202 THE EXECUTIVE. [ch. xiv. 

The last thing, therefore, of which there is 
any complaint or apprehension in this country 
is, that there should be any weakness in the 
Executive. There may be indecision in the 
public councils, and there may be difficulties 
in coming to conclusions as to what laws should 
or should not be enacted ; but the law once 
passed, the decision once taken, it is carried 
into effect with an authority and a vigour which 
no individual and no combination of individuals 
can successfully resist. 

Under the Constitution of the United States 
the position of the President, as the Execu- 
tive magistrate, is wholly different. " He is 
chosen by and made responsible to the people." 
He therefore acts through no executive coun- 
cil, neither is his responsibility in any way 
divided or controlled. Being made respon- 
sible to the people by being specially elected 
to that office, he has "the exclusive manage- 
ment of the affairs for which he is thus made 
responsible." * 

It might naturally be imagined that an 

* Story, § 1427. 



ch. xiv.] THE EXECUTIVE. 203 

officer thus elected, and thus directly appointed 
by the people to this high office of sole execu- 
tive magistrate, should therefore, in the exer- 
cise of his duties, feel himself armed with an 
authority so firm, as to leave no room for 
doubt or hesitation on any occasion that called 
for the exercise of it ; and the more so because 
he is the representative of the last, and that 
a very recent, expression of the popular will. 

But the fact is not so. The weakness of the 
Executive of the United States is not disputed. 
Many reasons have been given for this. One 
very obvious one is, that having been but 
recently chosen as the representative of public 
opinion, he cannot act with vigour against the 
sense of any large body of his supporters, should 
his duty require him to do so, without alienating 
those supporters, or perhaps converting them 
into opponents. But the principal reason is, 
the want of duration in office ; in fact, the 
very peculiarity in his position which most 
distinguishes him from the Executive of this 
country. 

That such is the inclination of Mr. Justice 



204 THE EXECUTIVE. [ch. xiv. 

Story's opinion is abundantly clear from the 
following passages : — 

" It has been already mentioned that duration in office 
constitutes an essential requisite to the energy of the execu- 
tive department. This has relation to two objects ; first, 
the personal firmness of the chief magistrate in the em- 
ployment of his constitutional powers ; and, secondly, the 
stability of the system of administration which may 
have been adopted under his auspices. With regard to 
the first, it is evident that the longer the duration in office, 
the greater will be the probability of obtaining so im- 
portant an advantage. A man will naturally be interested 
in whatever he possesses, in proportion to the firmness or 
precariousness of- the tenure by which he holds it. He 
will be less attached to what he holds by a momentary or 
uncertain title, than to what he enjoys by a title durable or 
certain ; and of course he will be willing to risk more for 
the one than for the other. This remark is not the less 
applicable to political privilege, or honour, or trust, than 
to any article of ordinary property. A chief magistrate, 
acting under the consciousness, that in a very short time 
he must lay down office, will be apt to feel himself too 
little interested in it to hazard any material censure or 
perplexity from an independent exercise of his power, or 
from those ill-humours which are apt at times to prevail on 
all governments. If the case should be that he should, 
notwithstanding, be re-eligible, his wishes, if he should 
have any for office, would combine with his fears, to debase 
his fortitude, or weaken his integrity, or enhance his 
irresolution. 



oh. xiv.] THE EXECUTIVE. 205 

" There are some, perhaps, who may be inclined to 
regard a servile pliancy of the Executive to a prevalent 
faction or opinion in the community, or in the Legislature, 
as its best recommendation. But such notions betray a 
very imperfect knowledge of the true ends or objects of 
government. While republican principles demand that 
the deliberate sense of the community should govern the 
conduct of those who administer their affairs, it cannot 
escape observation that transient impulses and sudden 
excitements, caused by artful and designing men, often 
lead the people astray, and require their rulers not to 
yield up their permanent interests to any delusions of this 
sort. It is a just observation that the people commonly 
intend the public good. But no one but a deceiver will 
pretend that they do not often err as to the best means of 
promoting it. Indeed, beset as they are by the wiles of 
sycophants, the snares of the ambitious and the avaricious, 
and the artifices of those who possess their confidence more 
than they deserve, or seek to possess it by artful appeals to 
their prejudices, the wonder rather is, that the errors are 
not more numerous and more mischievous. It is the duty 
of their rulers to resist such bad designs at all hazards ; 
and it has not unfrequently happened that by such resist- 
ance they have saved the people from fatal mistakes, and, 
in their moments of cooler reflection, obtained their grati- 
tude and their reverence. But how can resistance be 
expected where the tenure of office is so short, as to make 
it ineffectual and insecure ? " * 

What should be the proper duration of 

* §§ 1430, 1431. 



206 THE EXECUTIVE. [ch. xrv. 

office for the President of the United States is, 
according to Mr. Justice Story's opinion, — 

" Matter of more doubt and speculation. On the one 
hand, it may be said that the shorter the period of office, 
the more security there will be against any dangerous abuse 
of power. The longer the period the less will respon- 
sibility be felt, and the more personal ambition will be 
indulged. On the one hand, the considerations above 
stated prove that a very short period is, practically speak- 
ing, equivalent to a surrender of the executive power, as a 
check in government, or subjects it to an intolerable vacil- 
lation and imbecility."* 

Accordingly, during the discussions upon 
the Constitution in the Convention that framed 
it, it was proposed by Mr. Madison, Mr. 
Hamilton, and Mr. Jay, three of the ablest 
statesmen of that remarkable period, that the 
Executive of the United States should be 
appointed " during good behaviour, or in other 
words, for life."t By other members of the 
Convention it was proposed that the appoint- 
ment should be for seven years. The opinion 
in favour of the appointment for four years 

§ 1435. t § 1436, note. 



ch. xiv.] THE EXECUTIVE. 207 

only, prevailed, and upon this Mr. Justice 
Story thus expresses himself : — 

" Whether the period of four years will answer the pur- 
pose for which the Executive department is established, so 
as to give it at once energy and safety, and to preserve a 
due balance in the administration of the Government, is a 
problem which can be solved only by experience. That it 
will contribute far more than a shorter period towards 
these objects, and thus have a material influence upon the 
spirit and character of the Government, may be safely 
affirmed. Between the commencement and termination 
of the period of office, there will be a considerable interval 
at once to justify some independence of opinion and 
action, and some reasonable belief that the propriety of 
the measures adopted by the Administration may be seen 
and felt by the community at large. The Executive need 
not be intimidated in his course by the dread of an imme- 
diate loss of public confidence, without the power of regain- 
ing it before a new election ; and he may, with some confi- 
dence, look forward to that esteem and respect of his 
fellow-citizens, which public services usually obtain when 
they are faithfully and firmly pursued with an honest devo- 
tion to the public good. If he should be re-elected, he 
will still more extensively possess the means of carrying 
into effect a wise and beneficent system of policy, foreign 
as well as domestic. And if he should be compelled 
to retire, he cannot but have the consciousness that mea- 
sures long enough pursued to be found useful will be per- 
severed in ; or if abandoned, the contrast will reflect new 



208 THE EXECUTIVE. [ch. xiv. 

honour upon the past administration of the Government, 
and perhaps reinstate him in office. At all events, the period 
is not long enough to justify any alarms for the public 
safety. The danger is not that such a limited Executive 
will become an absolute dictator; but that he may be over- 
whelmed by the combined operations of popular influence 
and legislative power. It may be reasonably doubted, from 
the limited duration of this office, whether, in point of 
independence and firmness, he will not be found unequal 
to the task which the Constitution assigns him." * . . 

Again, the executive magistrate of the 
United States " being chosen by and made 
responsible to the people," has, as we have 
seen above, " the exclusive management of 
the affairs for which he is thus made respon- 
sible."! He is, in fact, the prime minister of 
the country, irremovable for four years, as 
well as the executive magistrate. Accordingly 
Mr. Justice Story thus speaks of the duties 
imposed upon him : — 

" The nature of the duties to be performed by the Pre- 
sident, both at home and abroad, are so various and com- 
plicated as not only to require great talents and great 
wisdom to perform them in a manner suitable to their 
importance and difficulty, but also long experience in 

* § 1439. t § 1427. 



ch. xiv.] THE EXECUTIVE. 209 

office to acquire what may be deemed the habits of admi- 
nistration, and a steadiness as well as comprehensiveness 
of view of all the bearings of measures. The executive 
duties in the [individual] States are few, and confined to a 
narrow range ; those of the President embrace all the ordi- 
nary and extraordinary arrangements of peace and war, of 
diplomacy and negotiation, of finance, of naval and mili- 
tary operations, and of the execution of the laws through 
almost infinite ramifications of details, and in places at 
vast distances from each other. He is compelled con- 
stantly to take into view the whole circuit of the Union, 
and to master many of the local interests and other circum- 
stances which may require new adaptations of measures 
to meet the public exigencies. Considerable time must 
necessarily elapse before the requisite knowledge for the 
proper discharge of all the functions of his office can be 
obtained ; and after it is obtained, time must be allowed 
to enable him to act upon that knowledge, so as to give 
vigour and healthfulness to the operations of the Govern- 
ment."* 

It will excite no surprise that Mr. Justice 
Story, after the above description of the quali- 
fications required in a President, should pro- 
nounce a very guarded and qualified opinion 
as to the sufficiency of his term of office of 
four years. His words are — 

* § 1440. 



210 THE EXECUTIVE. [ch. xiv. 

" Hitherto our experience has demonstrated that the 
period has not been found practically so long as to create 
danger to the people, or so short as to take away a reason- 
able independence and energy from the Executive. Still, 
it carmot be disguised that sufficient time has scarcely yet 
elapsed* to enable us to pronounce a decisive opinion upon 
the subject." f .... 

The experience of the last twenty years has 
certainly not strengthened the presumption 
in favour of the " reasonable independence 
and energy" of the Executive of the United 
States. 

The quick recurrence of the period which 
is to decide whether he is to be re-elected or 
returned to private life, cannot but exercise an 
unfavourable influence over his proceedings. 
The question whether it would not be more 
conducive to the public interests that he 
should be elected for a longer period, and be 
then ineligible for re-election, is one which is 
considered open to discussion. On this sub- 
ject, Mr. Justice Story says : — 

" A President chosen for ten years might be made in- 
eligible with far less impropriety than one chosen for 

* Written in 1833. t § 1441. 



ch. xiv.] THE EXECUTIVE. 211 

four years. And a President chosen for twenty years 
ought not to be again eligible, upon the plain ground that 
by such a term of office his responsibility would be greatly 
diminished, and his means of influence and patronage 
greatly increased, so as to check in a great measure the 
just expression of public opinion, and the free exercise of 
the elective franchise. Whether an intermediate period, 
say of eight years, or of seven years, as proposed in the 
Convention, might not be beneficially combined with sub- 
sequent ineligibility, is a point upon which great statesmen 
have not been agreed, and must be left to the wisdom of 
future legislators to weigh and decide. The inconvenience 
of such frequently-recurring elections of the chief magis- 
trate, by generating factions, combining intrigues, and 
agitating the public mind, seems not hitherto to have 
attracted as much attention as it deserves. One of two 
evils may possibly occur from this source ; either a con- 
stant state of excitement, which will prevent the fair 
operation of the measures of an Administration; or a 
growing indifference to the election, both on the part of 
candidates and the people, which will surrender it prac- 
tically into the hands of the selfish, the office-seekers, and 
the unprincipled devotees of power. It has been justly 
remarked by Mr. Chancellor Kent, that the election of a 
supreme executive magistrate for a whole nation affects so 
many interests, addresses itself so strongly to popular 
passions, and holds out such powerful temptations to 
ambition that it necessarily becomes a strong trial to 
public virtue, and even hazardous to the public tran- 
quillity."* 

* § 1449. 



212 THE EXECUTIVE. [ch. xiv. 

The mode of election for the President and 
vice-President, originally adopted, and con- 
tinued until the amendment of the Constitu- 
tion in that particular in 1804, was (by art. 2, 
sect. 1) by electors specially appointed for that 
purpose by the Legislature of each State (in 
number equal to the number of the senators 
and representatives of each State), who w r ere to 
conduct the election in the manner pointed out 
in that article. The votes of these " electoral 
colleges" were directed to be transmitted to the 
seat of the national Government, to be counted 
in the presence of both Houses, and the result 
declared. The person having a majority of the 
whole number of votes was to be President. 
But if no one of the candidates had such a 
majority, then the House of Representatives, 
the popular branch of the Government, was 
to elect from the five highest on the list the 
person whom they might deem best qualified 
for the office, each State having one vote in the 
choice.* The person having the next highest 
number of votes was to be vice-president. If 

* § 1454. 



ch. xiv.] THE EXECUTIVE. 213 

two or more had equal votes, the Senate was 
to choose the vice-president. 

On this mode of election Mr. Justice Story 
observes, that the principal difficulty that had 
been felt on the subject was — 

" The constant tendency, from the number of candi- 
dates, to bring the choice into the House of Representa- 
tives. This has already occurred twice in the progress of 
the Government, and in the future there is every pro- 
bability of a far more frequent occurrence. This was 
early foreseen ; and even in one of the State conventions, 
a most distinguished statesman, and one of the framers of 
the Constitution, admitted that it would probably be found 
impracticable to elect a President by the immediate suf- 
frages of the people ; and that in so large a country many 
persons would probably be voted for, and that the lowest of 
the five highest on the list might not have an inconsider- 
able number of votes. It cannot escape the discernment 
of any attentive observer, that if the House of Representa- 
tives is often to choose a President, the choice will, or at 
least may, be, by many motives independent of his merits 
and qualifications. There is danger that intrigue and 
cabal may mix with the rivalries and strife. And the dis- 
cords, if not the corruptions generated by the occasion, 
will probably long outlive the immediate choice, and 
scatter their pestilential influences over all the great in- 
terests of the country. One fearful crisis was passed in 
the choice of Mr. Jefferson over his competitor Mr. Burr 
in 1801, which threatened a dissolution of the Govern- 



214 THE EXECUTIVE. [ch. xrv. 

ment, and put the issue upon the tried patriotism of one 
or two individuals, who yielded from a sense of duty their 
preference of the candidate generally supported by their 
friends."* 

The issue of this contest of 1801 gave rise 
to the amendment of the Constitution in 
1804, above adverted to — 

" Materially changing the mode of the election of Pre- 
sident. In the first place, it provides that the ballots of 

* § 1464. Mr. Justice Story here adds in a note, "Allu- 
sion is here especially made to the late Mr. Bayard, who held 
the vote of Delaware, and who, by his final vote in favour of 
Mr. Jefferson, decided the election. It was remarked at the 
time, that in the election of Mr. Jefferson, in 1801 (which was 
made by the House of Representatives in consequence of none 
of the candidates having a majority of the whole number of 
voters), the votes of two or three States were held by persons 
who soon afterwards received office from him. The circum- 
stance is spoken of in positive terms by Mr. Bayard, in his 
celebrated speech on the Judiciary in 1802. Mr. Bayard did 
not make it matter of accusation against Mr. Jefferson, as 
founded on corrupt bargaining, nor has any such charge been 
subsequently made. The fact is here stated merely to show 
how peculiarly delicate the exercise of such functions neces- 
sarily is ; and how difficult it may be, even for the most exalted 
and pure Executive, to escape suspicion or reproach, when he is 
not chosen directly by the people. Similar suggestions will 
scarcely fail of being made, whenever a distinguished repre- 
sentative obtains office after an election of President, to which 
he has contributed." 



ch. xiv.] THE EXECUTIVE. 215 

the electors shall be separately given for President and 
vice-president, instead of one ballot for two persons as 
President; that the vice-president, like the President, 
shall be chosen by a majority of the whole number of 
electors appointed ; that the number of candidates out of 
whom the election of President is to be made by the House 
of Representatives, shall be three instead of five ; that the 
Senate shall choose the vice-president from the two highest 
numbers on the list ; and that if no choice is made of Pre- 
sident before the 4th of March following, the vice-pre- 
sident shall act as president."* 

Upon this amendment Mr. Justice Story 
remarks, that it 

" Has alternately been the subject of praise and blame, 
and experience alone can decide whether the changes are 
for the better or the worse." f 

And to the same effect are the observa- 
tions of Mr. Justice Kent in his " Commen- 
taries"! — 

" The election of 1801 threatened the tranquillity of the 
Union; and the difficulty that occurred in that case in 
producing a constitutional choice, led to the amendment of 
the Constitution on this subject ; but whether the amend- 
ment be for better or for worse, may be well doubted, and 
remains yet to be settled by the lights of experience." 

One of the principal reasons which weighed 

* § 1466. f § 1468. % Vol. i. p. 279. 



216 THE EXECUTIVE. [ch. xiv. 

with the framers of the Constitution, in 
recommending that a small body of persons 
should be " selected by their fellow-citizens 
from the general mass" for the specific pur- 
pose of electing a President, was, that such a 
body " would be most likely to possess the in- 
formation, discernment, and independence, 
essential for the proper discharge of this 
duty."* 

Mr. Justice Kent also describes it thus : — 
" To close the opportunity as much as possible 
against negotiation, intrigue, and corruption," 
the Constitution has confided the power of 
election to a small body of electors appointed 
in each State under the direction of the Legis- 
lature, and has left to Congress the deter- 
mination of the day when these electors are to 
be called together.! 

In all that regards the independence of the 
electors, the object has manifestly not been 
answered. 

Mr. Justice Story thus describes the actual 

* Story, § 1457. 

+ Kent's Commentaries, vol. i. p. 274. 



ch. xiv.] THE EXECUTIVE. 217 

practice, which has long since assumed a form 
completely at variance with the theory of the 
Constitution in this important particular : — 

" It has been observed, with much point, that in no 
respect have the enlarged and liberal views of the framers 
of the Constitution, and the expectations of the public, 
been so conrpletely frustrated as in the practical operation 
of the system, so far as relates to the independence of the 
electors in the electoral colleges. It is notorious that the 
electors are now chosen wholly with reference to particular 
candidates, and are silently pledged to vote for them. 
Nay, upon some occasions the electors publicly pledge 
themselves to vote for a particular person, and thus, in 
effect, the whole foundation of the system so elaborately 
constructed is subverted. The candidates for the pre- 
sidencv are selected and announced in each State long 
before the election, and an ardent canvass is maintained in 
the newspapers, in party meetings, and in the State Legis- 
latures, to secure votes for the favourable candidates, and 
to defeat his opponents. Nay, the State Legislatures often 
become the nominating body, acting in their official capa- 
cities, and recommending by solemn resolves their own 
candidates to the other States. So that nothing is left to 
the electors after their choice, but to register votes which 
are already pledged; and an exercise of an independent 
judgment would be treated as a political usurpation, dis- 
honourable to the individual, and a fraud upon his con- 
stituents."* 

* Story, § 1463. 



2 1 8 THE EXECUTIVE. [ch. xiv. 

But another practice has arisen, equally 
unknown to the Constitution, and equally de- 
structive of all independence of choice on the 
part of the electors. It is obvious, that if all 
the candidates for the presidency on either 
side were to be submitted to the electors, 
there would be a great probability that no one 
would obtain a majority of the total number 
of votes, and that, consequently, the selection 
of a President would be transferred to the 
House of Representatives, in the manner 
pointed out by the Constitution. 

To prevent this, delegates of each party 
are appointed previously, to meet in Conven- 
tion, and to determine which of the perhaps 
numerous candidates on their side shall be 
adopted as the candidate of the party. 

When the Convention has met and decided, 
the announcement is made of the result, and 
all the electors belonging to their party, or to 
any one of the many shades of it, throughout 
the Union, are expected to give their vote ac- 
cordingly, at the formal and actual election 



ch. xiv.] THE EXECUTIVE. 219 

for President, on the day appointed by Con- 
gress for that ceremony. 

Thus the whole numerical force of each 
party is directed in favour of one candidate, 
and the probability is that, when the votes 
come to be opened by Congress, the individual 
at the head of the poll will be found to have 
the required majority of the whole number 
voting, and therefore will be duly elected, and 
the necessity accordingly obviated of calling in 
the aid of the House of Representatives. 

But the consequence of this system is, that, 
so far from the electors bringing to bear 
"their information, discernment, and inde- 
pendence" upon the selection of a President, 
as is expected of them by the Constitution, it 
occasionally happens that they are required to 
give, and do give, their votes, in a body, for 
an individual, to be elected by them as Pre- 
sident, whose name, as a politician, they may 
have scarcely ever heard of, and of whose 
qualifications for that high office they know 
absolutely nothing ; and this after having 

L 2 



220 THE EXECUTIVE. [ch. xiv. 

expended many months' exertions, and mani- 
fested the highest degree of interest, in favour 
of one or more of the most distinguished men 
in the Union belonging to their side of politics. 
This system is denounced very loudly by 
many able and patriotic persons in the United 
States. It is asserted that its effect is to 
throw the whole business of " President-mak- 
ing " into the hands of professional politicians, 
who make it a regular " trade," and live by 
its results. It is a system also that has gained 
rapidly upon all the very numerous elections 
throughout the whole country, from that of 
the smallest and most unimportant office in the 
counties, cities, and towns, through the various 
gradations of State and national representa- 
tives, up to the President of the Union. It 
has, therefore, become a common mode of ex- 
pression, that " the people " have in reality 
very little to do practically with any of these 
elections, but that they are " wire-pulled " 
by the individuals who make it their business 
to manage them. 



ch. xiv.] THE EXECUTIVE. 221 

The last presidential election afforded a 
complete illustration of this process. 

The candidates on the democratic side were 
no less than eight : General Cass, Mr. Bu- 
chanan, Mr. Douglas, Mr. Marcy, Mr. Butler, 
Mr. Houston, Mr. Lane, and Mr. Dickenson ; 
all men "prominently known to their party," 
and the three first supported with great en- 
thusiasm by large sections of that party 
throughout the Union. 

The Convention appointed by the democratic 
party in each State to decide which among 
these various candidates should be recom- 
mended for their votes at the election, assem- 
bled at Baltimore for their first meeting on 
the 1st of June, 1852. On that day General 
Cass obtained the greatest number of votes at 
the first ballot, namely 116, out of the total of 
288 ; but a number far below the requisite 
majority. A few specimens of the manner in 
which the votes fluctuated will not be without 
interest. On the ninth ballot the votes were 
— Cass, 112; Buchanan, 87; Douglas, 39; 



222 THE EXECUTIVE. [ch. xiv. 

Marcy, 28 ; Butler, 1 ; Houston, 8 ; Lane, 
13 ; Dickenson, 1. On the twenty-second 
ballot — Cass, 33 ; Douglas, 80 ; Butler, 24 ; 
Lane, 13 ; Buchanan, 101 ; Marcy, 25 ; 
Houston, 10; Dickenson, 1. On the twenty- 
ninth ballot — Cass, 27. On the thirty-fifth 
ballot — Cass, 131; Douglas, 52 ; Buchanan, 
32. 

On this, the sixth day of the meeting (the 
proceedings of and the scenes in which were 
fully and somewhat graphically described by 
the public press of both parties), a new name 
appeared for the first time upon the lists — 
that of Mr. Pierce, of New Hampshire, a 
gentleman well known to his friends as a 
lawyer of ability ; also as having creditably 
fulfilled the duties of a member of the 
House of Representatives, and of the Senate 
of the United States ; better known, however, 
as having joined the army as a volunteer 
on the breaking out of the Mexican war, 
and as having commanded with distinction 
a brigade in that war, with the rank of 
General. It will, nevertheless, imply no 



ch. xiv.] THE EXECUTIVE. 223 

disrespect towards Mr. Pierce, if I repeat 
what was the universal expression, according 
to the public prints, throughout the Union, 
that no individual in the United States could 
have been more surprised at Mr. Pierce's 
nomination for the exalted and responsible 
office of chief magistrate of the Republic than 
Mr. Pierce himself. On the thirty-fifth ballot, 
the first in which Mr. Pierce's name appeared, 
he received 15 votes. On the forty-eighth, he 
received only 55 votes ; but on the forty-ninth, 
the numbers voting for him were 283, out of 
the total of 288 — a vote which 5 more would 
have made unanimous. 

Mr. Pierce was accordingly recommended 
to the democratic constituencies throughout 
the Union, and was elected by a considerable 
majority over his Whig opponent ; the num- 
bers being, for Mr. Pierce 1,504,471, and for 
General Scott 1,283,174. 

The circumstance particularly to be noted 
in the whole of this proceeding in relation to 
the Constitution of the United States is, that 
whereas, according to the theory of that Con- 



224 THE EXECUTIVE. [ch. xiv. 

stitution, certain electors nominated by the 
people of the United States are required to 
exercise their best judgment and discretion 
in selecting the person best qualified to fill the 
high and important post of President, in this 
case neither the electors nor the people .of the 
United States can be said to have had any- 
thing more to do with the election than merely 
to record their votes, in compliance with the 
decision of the Convention, which Convention 
had been nominated by them to decide be- 
tween certain known and popular candidates. 
Not being able to agree among themselves in 
favour of any one of those candidates, the 
members of the Convention took upon them- 
selves to bring forward a new one ; a gentle- 
man whose name had never until then been 
heard of in such a manner as in the re- 
motest degree to entitle him to anticipate such 
an honour, but who was, nevertheless, at once 
exalted to the first place in the Republic. 

If the surprise was great at this nomination, 
the unanimity with which it was accepted was 
not less, and was, if possible, surpassed by 



ch. xiv.] THE EXECUTIVE. 225 

the favourable anticipations that were an- 
nounced throughout the Union, as justified by 
the abilities, the character, and the decided 
democratic opinions and principles of the new 
candidate for the Presidency. The democratic 
party of every shade, from the most moderate 
to the most exalted, voted for him, and claimed 
him as the exponent of their principles. 

And as the democratic party is now without 
comparison the strongest in the United States, 
it may be asserted that no President ever en- 
tered upon office possessed of a higher degree 
of popularity, whether expressed in the number 
of votes he had received, or in the support and 
encouragement of the organs of public opinion. 

It is now but little more than eight months 
since Mr. Pierce's election, and he is now 
assailed, by a very large proportion of his 
former supporters, with a violence as great as 
their former enthusiasm in his favour. 

The reason is not disguised, or attempted to 
be. The original candidates who were brought 
forward at the Convention were, as has been 
stated, eight in number, each representing some 

L 3 



226 THE EXECUTIVE. [ch. xiv. 

section of the democratic party throughout the 
Union. If any one of those eight had been 
nominated for President by the Convention, 
Ins supporters would, according to known 
custom, have felt themselves entitled to a pre- 
ference in appointments to all the offices at the 
President's disposal, whether those of the prin- 
cipal members of his administration, or the 
inferior ones in each State, within the gift of 
the President. The Convention being so much 
divided, no one party was willing to give this 
victory to either of the others. Accordingly, 
an entirely new candidate was proposed, pre- 
viously unnamed, and, for aught that appeared, 
unthought of, and consequently totally un- 
pledged to any. This gentleman was accepted 
by all, and made President of the United 
States. 

But having been elected by all, by a vote 
almost unanimous in the Convention, and 
by the joint efforts of the various sections 
of his own party throughout the country, 
Mr. Pierce, has, since his election, proceeded 
to offer his patronage to, and to distri- 



ch. xiv.] THE EXECUTIVE. 227 

bute it among, persons belonging to those 
various sections ; and in some instances, not 
feeling himself restricted, in the choice of per- 
sons whom he deemed capable of filling re- 
sponsible offices, to one section of opinion 
only, he is said to have gone beyond the 
limit of his own party connections in the 
selection of such persons. For this, and 
for a "vacillating policy" which it is sup- 
posed to have led to, he has been denounced 
by influential portions of the democratic press ; 
and he is told with great vehemence, that 
nothing but some bold stroke of policy can 
restore him to his former popularity. 

Now, in the fact last adverted to lies, to a 
great extent, the instruction which is to be 
derived from a comparison of the system of 
the United States with our own, in reference 
to the Executive power of the State. 

If a President of the United States is capa- 
ble and ambitious, he must necessarily wish to* 
be re-elected at the expiration of his four years 
of office. To be re-elected he must be popular ; 
and to be popular, it is possible that it may be 



228 THE EXECUTIVE. [ch. xiv. 

necessary for him to adopt a line of policy 
which, to say the least, may be " disquieting" 
to, if it does not actually produce collision 
with, some of the other powers of the world in 
defence of their rights and interests. 

In his inaugural address, delivered at Wash- 
ington in March, 1853, some of the principles 
announced by Mr. Pierce, as those that were 
to be the basis of his foreign policy, were in 
strict accordance with the doctrines of the 
ultra-democratic section of his supporters. 
Mr. Pierce stated on that occasion, " that it 
is not to be disguised that the attitude of the 
United States as a nation, and its position on 
the globe, rendered the acquisition of certain 
possessions not within the jurisdiction of the 
United States eminently important for their 
protection, if not in the future essential for the 
preservation of the rights of commerce and the 
peace of the world." And the principle was 
avowed as " fundamental," that " the rights, 
security, and repose of this Continent reject 
the idea of interference or colonization on this 
side of the Ocean by any foreign power, be- 



ch. xiv.] THE EXECUTIVE. 22<) 

yond its present jurisdiction, as utterly in- 
admissible." 

It is possible, and it is to be hoped " for the 
sake of the peace of the world" that it may 
be probable, that doctrines so menacing in 
their assertion may not be found so easy of 
being carried out into action. It is impossible 
to mistake their purport. They point to the 
acquisition of Cuba ; and their plain meaning 
is, that neither Great Britain, nor France, 
nor any of the other friendly States inte- 
rested in the present distribution of power in 
the West Indies and along the eastern coast of 
North America, would have a right to inter- 
fere to prevent the island of Cuba from passing 
from the hands of Spain to those of the United 
States, by cession, or purchase, or by any other 
means within the power of the United States 
to bring about. 

Fortunately, the despatch of Lord John 
Russell, already referred to, has placed on re- 
cord the opinion of the Government of Great 
Britain upon this subject. And we may ac- 
cordingly rest secure that " the peace of the 



230 THE EXECUTIVE. [ch. xiv. 

world" will be best maintained by a course of 
action on the part of the people of the United 
States, in accordance with the principles pro- 
mulgated in that document. 

These considerations are of the more im- 
portance, because a strong indication has been 
given by the President of the United States to 
act, if possible, upon the policy enunciated in 
his address above-mentioned. 

He has appointed, as Minister of the United 
States to the Court of Madrid, Mr. Soule, a 
member of the most advanced section of the 
democratic party, and a gentleman who has 
taken a very conspicuous part in the agitation 
in favour of adding Cuba to the possessions of 
the United States. The proposition to acquire 
it from Spain by purchase has found much 
favour with that party ; and, although the 
suggestion has been once indignantly rejected 
by the Spanish Government, the well-known 
necessities of that Government, coupled with 
the fact of the large sum of £6,000,000 
sterling, or thereabouts (about 30,000,000 of 
dollars), having accumulated from surplus 



ch. xiv.] THE EXECUTIVE. 231 

revenue, and now lying idle in the coffers of 
the Treasury of the United States, have en- 
couraged the revival of the proposal, which 
there can be little doubt that Mr. Soule will 
endeavour to renew to the Spanish Ministry. 
The addresses received by Mr. Soule, from his 
political friends, on the eve of his leaving New 
York, and his answers to them, sufficiently 
indicated what was expected of him, and the 
object to which his endeavours would be 
directed. 

The " bold stroke of policy," therefore, 
which may restore the popularity of the Presi- 
dent and reunite his party, may possibly be 
soon revealed to the world. 

Happily for the repose, the dignity, the 
credit of this country, the Executive is ex- 
posed to no such temptations as have been 
above described. Even the most popular mi- 
nister, enjoying the most unbounded confidence 
of Parliament, and wielding all the constitu- 
tional powers entrusted to him by the Crown, 
could take no more effectual course to destroy 
his popularity in a day, than to propose, on the 



232 THE EXECUTIVE. [ch. xnr. 

one hand, to weaken still more an enfeebled 
ally, and, on the other, to deny the right of all 
other powers, who would, be affected by such 
an act, to interfere. That the Crown or a mi- 
nister should have recourse to such a line of 
policy with the view to acquire popularity, or 
to restore it, is an impossible supposition in 
this country. 

In relation to the above subject, the manner 
in which the power to make treaties is ar- 
ranged by the Constitution of the United 
States, is of some significance. This (by the 
2nd sect, of the 2nd article, clause 2) is 
committed to the President, " by and with the 
consent of two-thirds of the senators present." 

Upon this Mr. Justice Story remarks that — 

" Accurate knowledge of foreign politics, a steady and 
systematic adherence to the same views, nice and uniform 
sensibility to national character, as well as secrecy, deci- 
sion, and despatch, are required for a due execution of the 
power to make treaties."* 

And, accordingly, as the Senate "may be 
fairly presumed at all times to contain a very 

* § 1516. 



ch. xrv.] THE EXECUTIVE. 233 

large portion of talents, experience, political 
wisdom, and sincere patriotism, a spirit of 
liberality, and a deep devotion to all the sub- 
stantial interests of the country," the constitu- 
tional check of requiring two- thirds of that 
body to confirm a treaty will be found to be "a 
sufficient guarantee against any wanton sacrifice 
of private rights, or any betrayal of public 
privileges." # 

Mr. Justice Story further thinks that — 

" However safe it may be in Governments where the 
executive magistrate is an hereditary monarch, to commit 
to him the entire power of making treaties, it would be 
utterly unsafe and improper to entrust that power to an 
executive magistrate chosen for four years. It has been 
remarked, and is unquestionably true, that an hereditary 
monarch, though often the oppressor of his people,! has per- 
sonally too much at stake in the Government to be in any 
material danger of corruption by foreign powers, so as to 
surrender any important rights or interests. But a man 
raised from a private station to the rank of chief magistrate 
for a short period, having but a slender and moderate for- 
tune, and no very deep stake in the society, might some- 
times be under temptations to sacrifice duty to interest, 

* § 1513. 

t Mr. Justice Story probably alluded to events in English 
history, a century and a half old, or to some of the absolute 
monarchies of the continent of Europe. 



234 THE EXECUTIVE. [ch. xiv. 

which it would require great virtue to withstand. If 
ambitious, he might be tempted to seek his own aggrandise- 
ment by the aid of a foreign power, and use the field of 
negotiation for the purpose. If avaricious, he might make 
his treachery to his constituents a vendible article at an 
enormous price. Although such occurrences are not 
ordinarily to be expected, yet the history of human conduct 
does not warrant that exalted opinion of human nature 
which would make it wise in a nation to commit its most 
delicate interests and momentous concerns to the unre- 
strained disposal of a single magistrate. It is far more wise 
to interpose checks upon the actual exercise of the power, 
than remedies to redress and punish an abuse of it."* 

The vast patronage in the hands of the 
President of the United States, and the 
manner in which, immediately after each pre- 
sidential election, it has, according to recent 
usage, been exercised, are circumstances which 
create some of the most marked distinctions 
between the position and power of the Pre- 
sident, and that of the Executive of this 
country. 

By the clause of the Constitution last 
quoted,t the President is empowered to nomi- 
nate, and by and with the consent of the 
Senate to appoint ambassadors, other public 

* § 1515. f Article 2, section 2. 



ch. xiv.] THE EXECUTIVE. 235 

ministers and consuls, judges of the supreme 
court, and all other officers of the United 
States whose appointments are not otherwise 
provided for. 

Mr. Justice Story thus describes the extent 
of the patronage assigned to the President : — 

" The power of Congress has been exerted to a great 
extent, under this clause, in favour of the executive depart- 
ment. The President is by law invested, either solely or 
with the Senate, with the appointment of all military and 
naval officers, and of the most important civil officers, and 
especially those connected with the administration of 
justice, the collection of the revenue, and the supplies and 
expenditure of the nation. The courts of the Union 
possess the narrow prerogative of appointing their own clerk 
and reporter, without further patronage. The heads of 
departments are in like manner generally entitled to 
the appointment of the clerks in their respective offices. 
But the great anomaly of the system is the enormous 
patronage of the Postmaster-general, who is invested with 
the sole and exclusive authority to appoint and remove 
all deputy-postmasters; and whose power and influence 
have thus, by slow degrees, accumulated, until it is, per- 
haps, not too much to say that it rivals, if it does not 
exceed in value and extent, that of the President him- 
self."* 

* § 1536. The Postmaster-general, in his Report of 1st 
December, 1853, states that "the whole number of post offices 
in the United States at that date was 22,688. 



236 THE EXECUTIVE. [cm xiv. 

And with regard to the " inferior offices," 
the patronage of which is exclusively in the 
President, Mr. Justice Story asserts that 
they "probably include ninety-nine out of 
every hundred of the lucrative offices of the 
Government." 

It was argued, when the Constitution was 
under discussion, that the Executive would be 
materially weakened by being compelled to 
share with the Senate the power of appoint- 
ment to the principal offices ; but the contrary 
apprehension, that of the Executive becoming 
too powerful if possessed exclusively of the whole 
patronage of the Government, prevailed. And 
with regard to the inferior offices, it was urged 
that a President, acting under the eye of the 
public, would not venture to make his patron- 
age subservient to party interests, but would 
distribute it with a view to the highest purposes 
of the public good. On this subject Mr. 
Justice Story observes : # — 

" Perhaps the duties of the President, in the discharge 
of this most delicate and important duty of his office, were 

* § 1533. 



ch. xiv.] THE EXECUTIVE. 237 

never better summed up than in the following language of 
a distinguished commentator.* ' A proper selection and ap- 
pointment of subordinate officers is one of the strongest 
marks of a powerful mind. It is a duty of the President 
to acquire, as far as possible, an intimate knowledge of the 
capacities and character of his fellow-citizens ; to disregard 
the importunities of friends, the hints and menaces of 
enemies, the bias of party, and the hope of popularity. 
The latter is sometimes the refuge of feeble-minded men ; 
but its gleam is transient, if it is obtained by a dereliction 
of honest duty and sound discretion. Popular favour is 
best secured by carefully ascertaining, and strictly pursu- 
ing the true interests of the people. The President him- 
self is elected on the supposition that he is the most 
capable citizen to understand and promote those interests ; 
and in every appointment he ought to consider himself as 
executing a public trust of the same nature. Neither 
should the fear of giving offence to the public, or pain to 
the individual, deter him from the immediate exercise of 
his power of removal, on proof of incapacity or infidelity 
in the subordinate officer. The public, uninformed of the 
necessity, may be surprised, and at first dissatisfied ; but 
public approbation ultimately accompanies the fearless and 
upright discharge of duty.' " 

The extent of the patronage vested in the 
President being as described in the former 
paragraph, the manner in which it is ex- 
ercised, especially in reference to the removal 

* Rawle on the Constitution, c. 14, p, 164. 



238 THE EXECUTIVE. [ch. xiv. 

of persons appointed by a preceding Presi- 
dent, becomes a question of tbe most serious 
import. 

The question whether the consent of the 
Senate was necessary to the removal of a per- 
son from office as well as to his appointment 
thereto, was warmly debated at the time of the 
framing of the Constitution. The writers of 
the Federalist adopted the view that no 
removal from office could be lawfully made 
without the concurrence of the Senate. " The 
maintenance of this doctrine with great earn- 
estness by the Federalist," says Mr. Justice 
Story, — 

tk Had a most material tendency to quiet the just alarms of 
the overwhelming influence and arbitrary exercise of this 
prerogative of the Executive, which might prove fatal to 
the personal independence and freedom of opinion of public 
officers, as well as to the public liberties of the country. 
Indeed it is utterly impossible not to feel that if this 
unlimited power of removal does exist, it may be made, in 
the hands of a bold and designing man, of high ambition 
and feeble principles, an instrument of the worst oppres- 
sion and most vindictive vengeance. Even in monarchies, 
while the councils of State are subject to perpetual fluctua- 
tions and changes, the ordinary officers of the Government 



ch. xiv.] . THE EXECUTIVE. 9gQ 

are permitted to remain in the silent possession of their 
offices, undisturbed by the policy or the passions of the 
favourites of the court. But in a republic, where freedom 
of opinion and action are guaranteed by the very first 
principles of the Government, if a successful party may 
first elevate their candidate to office, and then make him 
the instrument of their resentments or their mercenary 
bargains ; if men may be made spies upon the actions of 
their neighbours to displace them from office ; or if fawn- 
ing sycophants upon the popular leader of the day may 
gain his patronage, to the exclusion of worthier and abler 
men — it is most manifest that elections will be corrupted at 
their very source, and those who seek office will have every 
motive to delude and deceive the people. It was not, 
therefore, without reason that, in the animated discussions 
already alluded to, it was urged that the power of removal 
was incident to the power of appointment; that it would be a 
most unjustifiable construction of the Constitution, and of its 
implied powers to hold otherwise ; that such a prerogative 
in the Executive was in its own nature monarchical and 
arbitrary, and eminently dangerous to the best interests as 
well as the liberties of the country. It would convert all 
the officers of the country into the mere tools and creatures 
of the President. A dependence so servile on one indi- 
vidual would deter men of high and honourable minds 
from engaging in the public service. And if, contrary to 
expectation, such men should be brought into office, they 
would be reduced to the necessity of sacrificing every 
principle of independence to the will of the chief magis- 
trate, or of exposing themselves to the disgrace of being 
removed from office, and that, too, at a time when it might 



240 THE EXECUTIVE. [ch. xiv. 

no longer be in their power to engage in other pursuits." 
. . . . " The language of the Federalist is, that the 
consent of the Senate would be necessary to displace as 
well as to appoint* A change in the chief magistrate, 
therefore, could not occasion so violent or so general a revo- 
lution in the officers of the Government as might be ex- 
pected if he were the sole disposer of offices. Where a 
man in any station had given satisfactory evidence of his 
fitness for it, a new President would be restrained from 
attempting a change in favour of a person more agreeable 
to him, by the apprehension that the discountenance of the 
Senate might frustrate the attempt, and bring some degree 
of discredit upon himself. " . . . . " On the other 
hand, those who, after the adoption of the Constitution, 
held the doctrine (for before that period it never appears 
to have been avowed by any of its friends, although it was 
urged by its opponents as a reason for rejecting it), that 
the power of removal belonged to the President, argued that 
it resulted from the nature of the power, and was indis- 
pensable for a due execution of the laws, and a regular 
administration of the public affairs." . . . "Besides, it 
was argued, that the danger that a President would remove 
good men from office was wholly imaginary. It was not 
by the splendour attached to the character of a particular 
President like Washington that such an opinion was to be 
maintained. It was founded on the structure of the office. 
The man in whose favour the majority of the people of the 
United States would unite to elect him to such an office, 
had every probability at least in favour of his principles. 
He must be presumed to possess integrity, independence, 

* Federalist, No. 77. 



ch. xiv.] THE EXECUTIVE. 241 

and high talents. It would be impossible that he should 
abuse the patronage of the Government, or his power of 
removal, to the base purposes of gratifying a party, or of 
ministering to his own resentments, or of displacing up- 
right and excellent officers, for a mere difference of opinion. 
The public odium which would inevitably attach to such 
conduct would be a perfect security against it. And, 
in truth, removals made from such motives, or with a 
view to bestow the offices upon dependents or favourites 
would be an impeachable offence. One'* of the most dis- 
tinguished framers of the Constitution (Mr. Madison), on 
that occasion, after having expressed his opinion decidedly 
in favour of the existence of the power of removal in the 
Executive, added, ' In the first place he will be im- 
peachable by the House of Representatives before the 
Senate for such an act of mal -administration ; for I contend 
that the wanton removal of meritorious officers would subject 
him to impeachment, and removal from his high trust.'"* 

That the event has proved entirely con- 
trary to the lofty and patriotic anticipations 
of the framers of the Constitution will be 
presently shown. It is first necessary to notice 
the remarkable fact, that the decision of Con- 
gress, admitting this exclusive right of dis- 
ci o o 

missal to be in the President, was only carried 
by a bare majority.f 

* Story, §§ 1539, 1540. 

+ Senate Journal, July 18, 1789, p. 42. Story, § 1543. 

M 



242 THE EXECUTIVE. [ch. xiv. 

Mr Justice Story thus records it : — 

" After a most animated discussion, the vote finally- 
taken in the House of Representatives was affirmative 
of the power of removal in the President, without any co- 
operation of the Senate, by the vote of thirty-four mem- 
bers against twenty. In the Senate the clause of the 
bill affirming the power, was carried by the casting vote 
of the vice-president. 

" That the final decision of this question so made was 
greatly influenced by the exalted character of the Presi- 
dent then in office, was asserted at the time, and has 
always been believed. Yet the doctrine was opposed, as 
well as supported, by the highest talents and patriotism of 
the country. The public, however, acquiesced in the de- 
cision ; and it constitutes, perhaps, the most extraordinary- 
case in the history of the Government, of a power con- 
ferred by implication on the Executive by the assent of a 
bare majority of Congress."* 

This power remained for some time un- 
questioned ; and " even the most zealous 
advocates of State rights seem to have slum- 
bered over this vast reach of authority.* 
Nor," says Mr. Justice Story, " is this general 
acquiescence and silence without a satisfactory 
explanation." 

" Until a very recent period the power had been exer- 
cised in few cases, and generally in such as led to their 

* §§ 1542, 1543. 



ch. xiv.] THE EXECUTIVE. 243 

own vindication. During the administration of President 
Washington few removals were made, and none without 
cause. Few were made in that of the first President 
Adams. In that of President Jefferson the circle was 
greatly enlarged ; but yet it was kept within narrow 
bounds, and with an express disclaimer of the right to re- 
move for differences of opinion, or otherwise than for some 
clear public good. In the administration of the subse- 
quent Presidents, Madison, Munroe, and John Quincy 
Adams, a general moderation and forbearance were exer- 
cised, with the approbation of the country, and without 
disturbing the harmony of the system. 

" Since the induction into office of President Jack- 
son (4th March, 1829), an opposite course has been pur- 
sued ; and a system of removals and new appointments to 
office has been pursued so extensively, that it has reached 
a very large proportion of all the offices of honour and 
profit in the civil departments of the country. This is a 
matter of fact; and beyond the statement of the fact, it is 
not the intention of the commentator to proceed. This 
extraordinary change of system has awakened general 
attention, and brought back the whole controversy, with 
regard to the executive power of removal, to a severe 
scrutiny." * 

The facts given by Mr. Justice Story, show- 
ing the extent of the removals from office by 
President Jackson, are as follows : — 

" In proof of this statement, lest it should be ques- 

* §§ 1542, 1543. 

M 2 



244 THE EXECUTIVE. [ch. xiv. 

tioned, it is proper to say, that a list of removals (con- 
fessedly imperfect), between the 4th of March, 1829, 
when President Jackson came into office, and the 4th of 
March, 1830, has been published, by which it appears, that, 
during that period, there were removed eight persons in 
the diplomatic corps ; thirty-six in the executive depart- 
ments ; and in the other civil departments, including con- 
suls, marshals, district attorneys, collectors and other 
officers of the customs, registers and receivers, one hun- 
dred and ninety-nine persons. These officers include a 
very large proportion of all the most lucrative offices 
under the national Government. Besides these, there were 
removals in the post-office department, during the same 
period, of four hundred and ninety-one persons.* This 
statement will be found in the National Intelligence?- of 
27th September, 1832, with the names of the parties, 
except postmasters ; and I am not aware that it has ever 
been denied to be correct. It is impossible for me to vouch 
for its entire accuracy. It is not probable that from the 
first organisation of the Government, in 1789, down to 
1829, the aggregate of all the removals made amounted to 
one-third of this number. In President Washington's 
administration of eight years, only nine removals took 
place." f 

President Tyler, in his address to Congress 
of 1811, declared that he would remove no one 

* See Mr. Postmaster-general Barry's Report of 24th 
March, 1830. 
+ Note to § 1543. 



ch. xiv.] THE EXECUTIVE. 2i<5 

from office except for incapacity, misconduct, 
or interference with politics ; and in 184-2 he 
proposed* to " regulate and restrain" the power 
of the President " to remove public officers ; 
since that power acts as a stimulus to office- 
holders and office-hunters at elections." The 
Presidents belonging to the Whig party ap- 
pear generally to have discouraged this prac- 
tice ; but in the seventeen years that have 
elapsed since the end of President Jackson's 
administration, these " wholesale removals," 
as they are now commonly called, have, ac- 
cording to common report, been of fre- 
quent occurrence. The public prints of 
the United States speak of offices " by the 
hundred" having been given away by the 
present President, in the short period since 
his election ; and their complaint is, not 
of the displacing of the previous holders, but of 
their places not having been supplied from the 
main body of the partisans of the President, 
who loudly assert the injustice done to them, 
and visit it upon the President, with the 
strongest accusations of imbecility in his per- 
sonal character and public policy. 



246 THE EXECUTIVE. [ch. xiv. 

The injury done to the public service by 
this system can admit of no dispute. But 
the point which is of general concern and 
interest, in a review of the working- of the 
Constitution of the United States, is, the 
strange and flagrant departure, exhibited by 
this practice, from that which was regarded 
bv the whole body of the enlightened and 
patriotic framers of the Constitution, as so 
fundamental a principle, and so essential to 
the interests and even liberties of the com- 
munity, that they could conceive no other 
remedy for it, if it should by possibility, and 
contrary to all their expectations, exist, than 
the impeachment of the President, who should 
so far violate the spirit of their institutions as 
to lend himself to it.* 

* The practice is receiving an illustration at present which 
is exciting some notice in the United States. The President 
has dismissed Mr. G. C. Bronson (formerly a judge, and still 
usually addressed as Judge Bronson) from his office of Col- 
lector of New York, on the ground of his being a political 
opponent. Judge Bronson, in a very temperate letter ad- 
dressed to the " Washington Sentinel," and dated New York, 
October 26, 1853, denies the imputation, and states that he 
does not entertain, and never did entertain the opinions im- 
puted to him by Mr. Secretary Davis and the President. The 






ch. xiv.] THE EXECUTIVE. 247 

Democratic party, however, support the President. The fol- 
lowing announcement is an indication of their sentiments : — 

" The Democrats op Massachusetts, on Collector Bron- 
son's Removal. 

" Boston, Oct. 28, 1853. 
" At the Democratic Convention of Plymouth County yes- 
terday, it was resolved that the removal of the Collector of 
New York, when he attempted to disregard the principles of 
the union of the Democratic party, deserves, and will receive, 
the support of all true friends of Democratic principles." 



248 THE JUDICIARY. [ch. xv. 



CHAPTER XV. 



THE JUDICIARY. 



The Constitution of the United States being" 
a written one, and defining, in certain terms, 
the rights and duties of all who live under it, 
it is a matter of necessity that there should be 
a power, lodged somewhere, of interpreting 
those terms, and declaring whether or not in 
any particular case they have been violated. 

This power has been placed, by the Consti- 
tution, in the judiciary of the United States. 

This body, therefore, is invested with an 
authority which cannot fail to appear to Eng- 
lish eyes to be of a very extraordinary cha- 
racter, namely, that of declaring void and of 
none effect, an Act solemnly passed by the 



ch. xv.] THE JUDICIARY. 249 

Legislature, should that Act be, in their 
opinion, at variance with the Constitution.* 
Our system of government, which is founded 
partly on usage and partly on Acts of Parlia- 
ment, neither knows, nor requires, nor would 
tolerate, any authority extraneous to that of 
the Legislature, when the will of the Legisla- 
ture has been once declared by a formal Act. 
The decision of Parliament becomes the su- 
preme law of the land, which all are bound 
to obey, and to which all submit, as the 
matured result of public opinion, and of 
the deliberations of the representatives of the 
whole community, in both Houses of Parlia- 
ment. We entrust to Parliament the power 
of altering the laws and modifying our insti- 
tutions from time to time, as occasion may 
arise, and the demands of the day may require; 
and we so entrust it, in the confidence that 
enlightened public opinion will at all times be 

* " It is an important principle, and never to be lost sight of, 
that the judiciary in this country is not a subordinate, but a 
co-ordinate, branch of the Government." — Judgment of Mr. 
Justice Patterson. Dallas's Reports, vol. ii. p. 309. Phila- 
delphia, 1798. 

M 3 



250 THE JUDICIARY. [ch. xv. 

sufficient to prevent the abuse of that power, 
or to check and correct it. 

But the system of government of the United 
States having, unlike ours, been strictly defined 
in a written document, and formally assented 
to, after being submitted to the suffrages of the 
electors throughout the whole of the States, 
and having thus been recognised as " the Su- 
preme Law of the land," all other laws that 
might be made contrary to it, either by 
Congress or by any one of the States, must 
necessarily be void ; and there must be some 
means of deciding what laws are of that 
nature, and thereupon declaring them void ac- 
cordingly. Considering also the extent of the 
Union, and that it is composed of an assem- 
blage of republics, each having its own judi- 
cature, it was essential, in order to prevent 
collisions between the laws and powers of the 
Union and those of the States, that there should 
be "some superintending judiciary establish- 
ment," without which there could be no uni- 
form administration or interpretation of the 
laws of the Union. 






ch. xv.] THE JUDICIARY. 251 

Mr. Justice Story places the matter in the 
following point of view : — 

" As the Constitution is the supreme law of the land, in 
a conflict between that and the laws either of Congress or 
of the States, it becomes the duty of the judiciary to follow 
that only which is of paramount obligation. This results 
from the very theory of a republican form of government, 
for otherwise the acts of the Legislature and Executive 
would in effect become supreme and uncontrollable, not- 
withstanding any prohibitions or limitations contained in 
the Constitution ; and usurpations of the most unequivo- 
cally dangerous character might be assumed, without any 
remedy within the reach of the citizens. The people 
would thus be at the mercy of their rulers in the State 
and National Governments, and an omnipotence would 
practically exist like that claimed for the British Parlia- 
ment. The universal sense of America has decided that, 
in the last resort, the judiciary must decide upon the con- 
stitutionality of the acts and laws of the general and State 
Governments, so far as they are capable of being made the 
subject of judicial controversy. It follows, that when they 
are subjected to the cognisance of the judiciary, its judg- 
ments must be conclusive, for otherwise they may be dis- 
regarded, and the acts of the Legislature and Executive 
enjoy a secure and irresistible triumph. To the people 
at large, therefore, such an institution is peculiarly valu- 
able, and ought to be eminently cherished by them. 

"The framers of the Constitution, having these great 
principles in view, adopted two fundamental rules with 



£52 THE JUDICIARY. [ch. xv. 

entire unanimity — first, that a national judiciary ought to 
be established ; secondly, that it ought to possess powers 
co extensive with those of the legislative department. 
Indeed, the latter necessarily flowed from the former, and 
was treated, and must always be treated [under the system 
of the United States], as an axiom of political government. 
But these provisions alone would not be sufficient to en- 
sure a complete administration of public justice, or to give 
permanency to the Republic. The judiciary must be so 
organised as to carry into complete effect all the purposes 
of its establishment. It must possess wisdom, learning, 
integrity, independence, and firmness. It must at once 
possess the power and the means to check usurpation, and 
enforce execution of its judgments."* 

Such bein^ the motives which actuated the 
framers of the Constitution of the United 
States in assigning to the judiciary its powers, 
and such being the duties expected of them, 
it is next to be seen " how far adequate means 
are provided for all these important pur- 
poses/' 

The first section of the third Article of the 
Constitution is as follows : — 

" The judicial power of the United States shall be vested 
in one supreme court, and in such inferior courts as Con- 
gress may from time to time ordain and establish. The 

* §§ 1576, 1577. 



ch. xv.] THE JTTDICIAKY. 253 

judges, both of the supreme and inferior courts, shall hold 
their offices during good behaviour, and shall, at stated 
times, receive for their services a compensation which 
shall not be diminished during their continuance in office." 

And by section % clause 1, their jurisdic- 
tion is thus defined : — 

" The judicial power shall extend to all cases, in law 
and equity, arising under the Constitution, the laws of the 
United States, and treaties made, or which shall be made, 
under their authority ; to all cases affecting ambassadors, 
other public ministers, and consuls; to all cases of ad- 
miralty and maritime jurisdiction; to controversies to 
which the United States shall be a party ; to controversies 
between two or more States ; between a State and citizens 
of another State ; between citizens of different States ; be- 
tween citizens of the same State, claiming lands under 
grants of different States; and between a State, or the 
citizens thereof, and foreign States, citizens, or subjects."* 

The Supreme Court consists of seven judges, 
and by clause 2 of the second section, they are 
invested with original jurisdiction " in all 
cases affecting ambassadors, other public mi- 

* This clause was subsequently altered by Article 11 of the 
Amendments of the Constitution, which is as follows : — " The 
judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another State, 
or by citizens or subjects of any foreign State." 



254 THE JUDICIARY. [ch. xv. 

nisters, and consuls, and those in which a 
State shall be party," and "in all the other 
cases before mentioned, with appellate juris- 
diction," with such exceptions as Congress 
may think proper to make. 

The inferior courts of the United States, to 
which the first section refers, are Circuit 
Courts, of which the judges of the Supreme 
Court are also the judges (the whole Union 
being divided into circuits), and the District 
Courts, one at least of which is established in 
every State. 

These two courts have original jurisdiction 
in the cases specified in the above article, and 
also, as well as the Supreme Court, appellate 
jurisdiction in respect to cases within their 
judicial cognisance which may have arisen in 
the State courts ; the obvious motive for 
which was, " the importance, and even the 
necessity, of uniformity of decisions through- 
out the whole of the United States upon all 
subjects within the purview of the Consti- 
tution."* 

* Story, §§ 1590-1597. 






ch. xv.] THE JUDICIARY. 255 

Whether it was in accordance with the 
Constitution, that the judges of the Supreme 
Court should also be called upon to fulfil the 
duties of judges of the circuit courts, was 
questioned in an elaborate memorial presented 
to President Washington, within a year after 
the Constitution was established, by Chief 
Justice Jay and the other judges of the Su- 
preme Court. But no change was made ; 
and when the question was raised in 1803 
before the Supreme Court, it was decided that 
the practice up to that time should be taken 
to have decided the point in favour of its 
being" within the intention of the Constitu- 
tion.* 

The mode of appointing to these high judi- 
cial offices is obviously a matter of the first 
importance, in relation to the qualifications, 
and to the independence, of the functionaries 
invested with them. 

* Note to § 1579. The two great cases which have decided 
the extent of the appellate jurisdiction of the United States 
Courts are Martin v. Hunter, 1 Wheatstone's Reports, 304 ; and 
Cohens v. Virginia, 6 Wheat., 413 to 423. 



256 THE JUDICIARY. [cm. xv. 

The President is, by the Constitution,* 
authorised to nominate, and, by and with the 
advice and consent of the Senate, to appoint 
the judges of the Supreme Court. 

The appointment of the judges of the in- 
ferior courts is not expressly provided for by 
the Constitution, and Congress have passed 
no Act to regulate it. It has, therefore, ac- 
cording to Mr. Justice Story, been considered 
" silently to belong to the President, under 
the clause of the Constitution authorising him 
to appoint all other officers of the United 
States whose appointments are not therein 
otherwise provided for."f 

Not inferior in the importance of its results 
upon the weight and character of the judicial 
body, is the tenure by which they hold their 
offices ; and there is no point upon which the 
able commentators on the Constitution — Story, 
Kent, Rawle, and Tucker, have bestowed 
more pains than this, in their endeavours to 

* Article 2, section 2, c. 2. 
t § 1599. 



ch. xv.] THE JUDICIARY. 257 

impress upon their fellow-citizens the convic- 
tions which they themselves so deeply felt, 
that a secure and independent tenure of the 
judicial office is one of the cardinal points on 
which their Constitution, their liberties, and 
even the individual safety of life and property, 
must always in a great degree depend. 

With regard to the tenure of office of the 
judges of the Supreme Court there is no 
question. They are appointed during good 
behaviour, by the President, in conjunction 
with the Senate. The practice has been in 
accordance with the hitherto-accepted theory, 
namely, that they cannot be removed, except 
after conviction upon impeachment for miscon- 
duct. 

But the judges of the inferior courts, 
although also appointed during good beha- 
viour (which the law of the United States 
interprets to mean for life, in accordance with 
the decision of Chief Justice Holt upon the 
subject, which is the foundation of the inter- 
pretation of these words in our courts)* do not 

* 1 Shower's Reports, 426. 506. 536. 



258 THE JUDICIARY. [ch. xv. 

stand, in regard to the permanence of their 
appointments, upon the same secure footing of 
precedent as their brethren of the Supreme 
Court.* 

Upon this subject, Mr. Justice Story com- 
ments as follows : — 

"Unfortunately, a measure was adopted in 1802, under 
the auspices of President Jefferson, which, if its constitu- 
tionality can be successfully vindicated, prostrates in the 
dust the independence of all inferior judges, both as to the 
tenure of their office and their compensation for services, 
and leaves the Constitution a miserable and vain delusion. 
In the year 1801, Congress passed an Act reorganising 
the judiciary, and authorising the appointment of sixteen 
new judges, with suitable salaries, to hold the circuit 
courts of the United States in the different circuits 
created by the Act. Under this Act the circuit judges 
received their appointments and performed the duties of 
their offices until the year 1802, when the courts esta- 
blished by the Act were abolished by a general repeal of 
it by Congress, without in the slightest manner providing 
for the payment of the salaries of the judges, or for any 
continuation of their offices. The result of this Act, 
therefore, is, (so far as it is a precedent,) that, notwith- 
standing the constitutional tenure of office of the judges 
of the inferior courts is during good behaviour, Congress 
may at any time, by a mere act of legislation, deprive 

* Story, §§ 1600-1627. 



ch. xv.] THE JUDICIAKY. 259 

them of their offices at pleasure, and with it take away 
their whole title to their salaries. How this can be recon- 
ciled with the terms or the intent of the Constitution is 
more than any ingenuity of argument has ever as yet 
been able to demonstrate. The system fell because it was 
unpopular with those who were then in possession of power; 
and the victims have hitherto remained without any indem- 
nity from the justice of the Government. 

"Upon this subject a learned commentator* has spoken 
with a manliness and freedom worthy of himself and of 
his country. To those who are alive to the just interpre- 
tation of the Constitution — those who, on the one side, are 
anxious to guard it against usurpations of power injurious 
to the States ; and those who, on the other side, are 
equally anxious to prevent a prostration of any of its great 
departments to the authority of the others — the language 
can never be unseasonable, either for admonition or in- 
struction, to warn us of the facility with which public 
opinion may be persuaded to yield up some of the barriers 
of the Constitution under temporary influences ; and to 
teach us the duty of an unsleeping vigilance to protect that 
branch which, though weak in its powers, is yet the guar- 
dian of the rights and liberties of the people. ' It was 
supposed,' says the learned author, ' that there could not 
be a doubt that those tribunals in which justice is to be 
dispensed according to the Constitution and laws of the 
confederacy — in which life, liberty, and property are to be 
decided upon — on which questions might arise as to the 

* Tucker's Blackstone's Commentaries, vol. i. App. 360 ; 
3 App. 22-25. 



260 THE JUDICIARY. [ch. xv. 



« 



constitutional power of the Executive, or the constitutional 
obligations of an Act of the Legislature, and in the decision 
of which the judges might find themselves constrained by 
duty and by their oaths to pronounce against the authority 
of either — should be stable and permanent, and not de- 
pendent upon the will of the Executive or Legislature, or 
both, for their existence ; and that without this degree of 
permanence, the tenure of office during good behaviour 
could not secure to that department the necessary firmness 
to meet unshaken every question, and to decide as justice 
and the Constitution should dictate, without regard to 
consequences. These considerations induced an opinion, 
which it was presumed was general, if not universal, that 
the power vested in Congress to erect, from time to time, 
tribunals inferior to the Supreme Court, did not authorise 
them at pleasure to demolish them. Being built upon the 
rock of the Constitution, their foundations were supposed 
to partake of its permanency, and to be equally incapable 
of being shaken by the other branches of the Government. 
But a different construction of the Constitution has lately 
prevailed. It has been determined that a power to ordain 
and establish from time to time, carries with it a discre- 
tionary power to discontinue or demolish ; that although 
the tenure of office be " during good behaviour," this does 
not prevent the separation of the office from the officer, by 
putting down the office, but only secures to the officer his 
station, upon the terms of good behaviour, so long as the 
office itself remains. Painful, indeed, is the remark, that 
this interpretation seems calculated to subvert one of the 
fundamental pillars of free Governments, and to have laid 
the foundation of one of the most dangerous political 



ch. xv.] THE JUDICIARY. 261 

schisms that has ever appeared in the United States of 
America."'* 

And in another passage, representing the 
illegality of the above Act of the Legislature, 
Mr. Justice Story rightly insists that — 

" Until the people have by some solemn and authorita- 
tive act annulled or changed the established form, it is 
binding upon themselves collectively, as well as indi- 
vidually ; and no presumption, or even knowledge of their 
sentiments, can warrant their representatives in a departure 
from it prior to such an act." 

It cannot be doubted that the tendency of 
such a step on the part of the Legislature, in 
reference to the judges of the inferior courts 
of the United States, must have been to loosen 
the feeling of permanency with regard also to 
the tenure of office by the judges of the 
Supreme Court; and, accordingly, Mr. Jus- 
tice Story adverts to the fact that President 
Jefferson, 

" During the latter years of his life, and indeed from 
the time when he became President of the United States, 
was a most strenuous advocate of the plan of making the 
judges hold their offices for a limited term of years only. 

* Story, § 1634. 



262 t THE JUDICIARY. [ch. xv. 

He proposed that their appointments should be for four or 
six years, renewable by the President and the Senate."* 

He also observes that — 

" Surely it will not be pretended that any Constitution 
adapted to the American people could ever contemplate 
the executive and legislative departments of the Govern- 
ment as the ultimate depositaries of the power to interpret 
the Constitution, or as the ultimate representatives of the 
will of the people, to change it at pleasure. If, then, the 
judges were appointed for two, or four, or six years, instead 
of during good behaviour, the only security which the 
people would have for a due administration of public jus- 
tice, and a firm support of the Constitution, would be, that, 
being dependent upon the Executive for their appointment 
during their brief tenure of office, they might, and would, 
represent more fully, for the time being, the constitutional 
opinion of each successive Executive, and thus carry into 
effect his system of government. Would this be more 
wise, or more safe, more for the permanence of the Consti- 
tion, or the preservation of the liberties of the people, than 
the present system? Would the judiciary then be, in 
fact, an independent, co-ordinate department? Would it 
protect the people against an ambitious or corrupt Execu- 
tive, or restrain the Legislature from acts of unconstitu- 
tional authority ?"f 

The opinions of President Jefferson, in 1801, 
were revived in 1829 by President Jackson, 
who, in his inaugural address for that year, 

* § 1618, note. t § 1618. 



ch. xv.] THE JUDICIARY. 263 

recommends the general extension of the law 
which limits appointments for four years ; a 
recommendation which he repeated in his 
address of 1832. 

The adoption of the principle of appointing 
their judges for terms of years, in some States 
by the electoral body, in others by the Legis- 
lature, which, as I shall presently show, has of 
late years made considerable progress among 
the individual States, makes it desirable that I 
should illustrate the opinions of the framers of 
the Constitution, and of other learned persons 
upon this particular point, by a few more ex- 
tracts ; more especially as the growing de- 
parture from principles which those distin- 
guished persons endeavoured to sustain with 
so much argument and eloquence, must in 
all probability produce by degrees very per- 
ceptible effects upon the judiciary of the 
United States. 

"Upon this subject," says Mr. Justice Story, "the 
' Federalist' has spoken with so much clearness and force, 
that little can be added to its reasoning. The standard 
of good behaviour, for the continuance in office of the 
judicial magistracy, is certainly oue of the most valuable 



264 THE JUDICIAKY. [ch. xv. 

of the modern improvements in the practice of govern- 
ment. In a monarchy it is an excellent barrier to the 
despotism of the prince ; in a republic it is a no less ex- 
cellent barrier to the encroachments and oppressions of 
the representative body. And it is the best expedient that 
can be devised in any government, to secure a steady, 
upright, and impartial administration of the laws. Who- 
ever attentively considers the different departments of 
power, must perceive that in a government in which they are 
separated from each other, the judiciary, from the nature 
of its functions, will always be the least dangerous to the 
political rights of the Constitution, because it will be 
least in a capacity to annoy or injure them. The Execu- 
tive not only dispenses the honours, but holds the sword of 
the community. The Legislature not only commands the 
purse, but prescribes the rules by which the duties and 
rights of every citizen are to be regulated. The judiciary, 
on the contrary, has no influence over either the sword or 
the purse ; no direction either of the strength or of the 
wealth of the society, and can take no active resolution 
whatever. It may be truly said to have neither force nor 
will, but merely judgment; and must ultimately depend 
upon the aid of the executive arm for the efficacious exer- 
cise even of this faculty. 

" This simple view of the matter suggests several im- 
portant consequences. It proves incontestibly that the 
judiciary is beyond comparison the weakest of the three 
departments of pow 7 er ; that it can never attack with suc- 
cess either of the other two ; and that all possible care is 
requisite to enable it to defend itself against their attacks. 
It equally proves, that although individual oppression may 



ch. xv.] THE JUDICIARY. 265 

now and then proceed from the courts of justice, the 
general liberty of the people can never be endangered 
from that quarter. I mean, so long as the judiciary re- 
mains truly distinct from both the Legislature and the Ex- 
ecutive. For I agree that ' there is no liberty if the power 
of judging be not separated from the legislative and execu- 
tive powers.' It proves in the last place, that as liberty 
can have nothing to fear from the judiciary alone, but 
would have everything to fear from its union with either of 
the other departments ; that as all the effects of suck 
an union must ensue from a dependence of the former on 
the latter, notwithstanding a nominal and apparent separa- 
tion ; that as, from the natural feebleness of the judiciary, 
it is in continual jeopardy of being overpowered, awed, or 
influenced by its co-ordinate branches ; that as nothing 
can contribute so much to its firmness and independence 
as permanency in office,* this quality may, therefore, be 
justly regarded as an indispensable ingredient in its con- 
stitution, and in a great measure as the citadel* of the 
public justice and the public security."! 

Other considerations are urged by Mr. 
Justice Story, from this and other authorities, 
not less weighty and convincing. 

" The benefits," he says, " of the integrity and modera- 
tion of the judiciary arising from their independence, have 
been already felt in more States than one, in mitigating 

* The Italics are in the original. t §§ 1600, 1601. 

N 



266 THE JUDICIARY. [ch. xv. 

the effect of hasty legislation, aud of unjust and partial 
laws. Considerate men of every description ought to 
prize whatever will tend to beget or fortify that temper in 
our courts, as no man can be sure that he may not be 
to-morrow the victim of a spirit of injustice, by which he 
may be a gainer to-day. And everybody must feel that 
the inevitable tendency of such a spirit is to sap the 
foundations of public and private confidence, and to intro- 
duce in its stead universal distrust and distress."* 

Again, laws necessarily become numerous, 
and 

" To avoid an arbitrary discretion in the courts, it is 
indispensable that they should be bound down by strict 
rules and precedents, which serve to define and point out 
their duty in every particular case that comes before 
them." 

To acquire a competent knowledge of these 
laws and precedents, demands long and labori- 
ous study. 

" Hence it is that there can be but few men who will 
have sufficient skill in the laws to qualify them for the 
stations of judges. . . . These considerations apprise us 
that the Government can have no great option between fit 
characters ; and that a temporary duration in office, which 
would naturally discourage such characters from quitting a 

* § 1603. 



ch. xv.] THE JUDICIARY. 267 

lucrative line of practice to accept a seat on the bench, 
would have a tendency to throw the administration of jus- 
tice into hands less able, and less well qualified to conduct 
it with utility and dignity."* 

Also: 

" It is obvious that, under such circumstances, if the 
tenure of office of the judges is not permanent, they will 
soon be rendered odious ; not because they do wrong, but 
because they refuse to do wrong ; and they will be made to 
give way to others, who shall become more pliant tools of 
the leading demagogues of the day. There can be no 
security for the minority in a free government, except 
through the judicial department. In a monarchy, the 
sympathies of a people are naturally enlisted against 
the meditated oppressions of their ruler; and they screen 
his victims from his vengeance. His is the cause of 
one against the community. But in free governments, 
where the majority, who obtain power for the moment, are 
supposed to represent the will of the people, persecution, 
especially of a political nature, becomes the cause of the 
community against one. It is the more violent and unre- 
lenting, because it is deemed indispensable, to attain power, 
or to enjoy the fruits of victory. In free governments, 
therefore, the independence of the judiciary becomes far 
more important to the security of the rights of the 
citizens, than in a monarchy ; since it is the only barrier 
against the oppressions of a dominant faction, armed for 
the moment with power, and abusing the influence acquired 

* § 1605. 

N °2 



268 THE JUDICIARY. [oh. xv. 

under accidental excitements, to overthrow the institutions 
and liberties which have been the deliberate choice of the 
people."* 

The above facts and reasonings are so ele- 
mentary and familiar, in relation to our consti- 
tutional system, that the extracts may have been 
found somewhat tedious; but they are of import- 
ance when it is considered how little effect such 
judicious expositions of great principles and 
such earnest and solemn warnings have had, in 
preventing the w T ide and growing adoption in 
the United States of the very practice thus 
denounced. 

When Mr. Justice Story's w T ork was pub- 
lished (in 1833), only five out of the twenty- 
four States then existing had adopted the prin- 
ciple of submitting the judges to the ordeal of 
an election, and appointing them for a term of 
years. 

Eleven years later Mr. Justice Kent, in his 
Commentaries, published in 1844, enumerates 
twelve States out of the then number of twenty- 
nine, in which all the judges were subjected to 

* § 1612. 



ch. xv.] THE JUDICIARY. 269 

the principle of election, and all appointed for 
terms of years, varying from two and three to 
seven and eight, and in one instance only for 
as many as twelve years. 

At present (1853) the elective principle in 
the appointment of judges, and their appoint- 
ment for short periods, prevails in twenty-two 
out of the thirty-one States of the Union. In 
three others the elective principle has been 
adopted, but the term is during good beha- 
viour ; and in two others they are appointed 
for a term of years by the Governor. 

Such an extensive and absolute departure 
from, and repudiation of principles that have 
been held by all the public writers and all the 
statesmen of the civilised world, to be the very 
foundation of true liberty, and even of the 
security of life and property, is a phenomenon 
which, occurring as it has in so short a time, 
and among a people so versed in free discus- 
sion, must be regarded as among the most ex- 
traordinary events in constitutional history. 
Doubtless it has its point of view from which, 
under peculiar circumstances, its advocates 



270 THE JUDICIARY. [ch. xv. 

have derived their confidence in justifying and 
maintaining it ; and to this I shall take occa- 
sion to advert in a note. The fact itself can- 
not be otherwise than one of the most pregnant 
importance, and its consequences, though they 
may be slow in developing themselves, will not 
be the less certain. 

The practice in the different States, in 1844, 
is described by Mr. Justice Kent, in vol. i. 
p. 294, of his Commentaries, and may be con- 
densed as follows. At that time (as at pre- 
sent), among the older and more settled States 
of the Union, — 

" Connecticut, though she appointed the judges of her 
Supreme Court, and of the Superior Court, during good 
behaviour, required ' all other judges to be appointed 
annually, by the concurrent vote of the Senate and House 
of Representatives.' 

"Vermont elected all her judges annually by the 
General Assembly. 

" Rhode Island, up to the year 1843, elected all her 
judges annually, but in that year, by an alteration in her 
Constitution, the judges of the Supreme Court were 
directed to be elected by the Legislature, during pleasure ; 
all the other judges to be elected for one year. 

"New Jersey and Ohio appointed their judges of the 
^Supreme Court and of the Circuit Courts for seven years. 



ch. xv.] THE JUDICIARY. 271 

In Ohio the appointment is by the joint ballot of both 
Houses." [Now, since 1851, by the people.] 

Among the younger of the northern States, 
Indiana and Michigan also appointed their 
judges of the Supreme and Circuit Courts for 
seven years. In Michigan the judges of the 
inferior Courts were elected by the people for 
four years. The election in Indiana is thus 
fixed by their Constitution of 1816, s. 7 : — 

"The judges of the Supreme Court shall be appointed 
by the Governor, by and with the advice and consent of the 
Senate. The president of the Circuit Courts shall be ap- 
pointed by joint ballot of both branches of the General 
Assembly ; and the associate judges of the Circuit Courts 
•shall be elected by the qualified electors of the respective 
counties. " * 

" By the Ordinance of Congress of July, 1787, for the 
government of the north-western territory, the commissions 
of the judges were to continue in force during good 
behaviour. But the subsequent Constitution of Ohio and 
Indiana cut down that permanent tenure to one of seven 
years. 

" Of the southern States, Tennessee appointed her 
judges of the Supreme Court for twelve years, and of the 
inferior Courts for eight years. 

* By the new Constitution of 1851, the judges of the 
Superior Courts also are now elected by the people. 



272 THE JUDICIAKY. [ch. xv. 

" Georgia appointed her judges of the Supreme and 
Circuit Courts for three years. These are elected by the 
Legislature. All the other judges are elected annually by 
the people. 

"Alabama, in 1819, established the judicial tenure to 
be during good behaviour ; but the Constitution has been 
since altered, and the tenure changed to six years, and 
the election is by joint vote of both Houses of General 
Assembly. 

" By the first Constitution of the State of Mississippi, 
in 1807, the judges held their office during good behaviour, 
or until 65 years of age, and were appointed by the joint vote 
of the two Houses of the Legislature, given viva voce, and 
recorded. But by the Constitution, as amended in 1833, 
every officer of the Government, legislative, executive, and 
judicial, is elected by the universal suffrage of the people ; 
that is by every free white male citizen of twenty-one years 
of age, who has resided within the State for one year pre- 
ceding, and for the last four months within the county, 
city, or town in which he offers to vote. The judges of the 
Supreme Court of Errors and Appeals, are thus chosen by 
districts for six years. The Chancellor is elected for six 
years by the electors of the whole State. The judges of the 
Circuit Courts are elected in districts for four years. The 
judges of probates and clerks of courts are elected for two 
years, &c. This is carrying the democratic principle beyond 
all precedent in this country. 

" In Arkansas the judges of the Supreme Court hold 
their offices for eight years, and the judges of the Circuit 
Courts for four years." 



ch. xv.] THE JUDICIARY. 273 

Since the date of Mr. Justice Kent's sum- 
mary of the different modes of appointment of 
judges in the different States, the great State 
of New York has adopted the elective system 
in the appointment of judges. In that State 
the judges, by the present Constitution, hold 
their offices for eight years, and are elected by 
the people, that is to say, " by the white male 
citizens of twenty- one years of age, who have 
resided one year in the State, and four months 
preceding the election." " Persons of colour 
who have resided three years in the State, and 
who possess a freehold of 250 dollars, and 
have held it one year, have a right to vote." 

In the important State of Pennsylvania also 
the principle of the appointment of judges for 
terms of years has been adopted ; the judges 
of the Supreme Court being appointed (by the 
President and Senate) for fifteen years, those 
of the Court of Common Pleas for ten, and 
the Associate Judges for five years. And in 
the State of New York the salaries of the 
judges of the Superior Courts are subject to an 
annual vote of the Legislature, which renders 

N 3 



274 THE JUDICIARY. [ch. xv. 

them annually liable to dismissal from their 
posts at the pleasure of the Legislature. 

In Florida the judges (since 1851) are 
elected by the people for jive years ; in Mis- 
souri, Iowa, Wisconsin, and California, for 
six ; and in Maryland, and even in Ken- 
tucky and Virginia, by their new Constitu- 
tions of 1850 and 1851, the judges are 
elected by "the white male citizens of 21 
years of age" (resident from six months to 
two years), in the first State for ten, and in 
the last for four, eight, and twelve years. 

In twenty-two States, therefore, it appears 
that the judges are appointed by election, 
either annually (as in four instances), or for 
terms of two, three, four, five, six, seven, 
eight, ten, twelve, or, in one instance, fifteen 
years. 

In Illinois, and in North and South Caro- 
lina, the appointment is by election by the joint 
ballot of both Houses, but the term during 
good behaviour. 

Louisiana has adopted the principle of a 
term of years ; the judges being appointed by 



ch.xv.] THE JUDICIAKY. 275 

the Governor for eight years. Texas also limits 
their term of office to six years, but places the 
appointment in the Governor. 

In the remaining States the judges are, I 
believe, appointed in the manner hitherto 
deemed by all authority and experience to be 
the only one by which the independence of the 
judiciary can be secured, and with it the rights 
and liberties of the people ; that is, by the 
Executive, and during good behaviour. 

It is impossible to look upon this wide- 
spread departure from the only practice which 
could secure the independence of the judiciary, 
without recognising in it a feeling, as widely 
diffused, which aims at putting an end to that 
independence. The burden of all those elabo- 
rate arguments and earnest warnings of the 
greatest statesmen and lawyers whom the 
United States has produced, as above quoted, 
has been, that there was but one check, under 
their system of government, upon the self-will 
of democracies, one security against the tyranny 
of the majority, and that was to be found in 
the independence of the judicial body. We 



276 THE JUDICIARY. [ch. xv. 

have seen that this independence was attacked 
as far back as the year 1801, by President 
Jefferson, in his endeavour to bring about an 
alteration in the Constitution, which would 
permit of the judges of the Supreme Court 
of the United States being appointed for 
terms of years only. We have seen that, 
by an Act of Congress, in the year 1803, 
judges of the Circuit Courts of the United 
States, who had been appointed in accordance 
with the Constitution, were, by a legislative 
Act, dismissed, in a manner, according to 
the best legal opinions, totally unauthorised 
by the Constitution ; and that President Jack- 
son advocated the principle of appointments 
for terms of years in 1829 and in 1832. 

It is perfectly well known also that from the 
time of the framing of the Constitution to the 
present day, there has existed a strong feeling 
of jealousy, and an open hostility, on the part 
of the ultra-democratic body throughout the 
Union, in relation to the judiciary, whether of 
the individual States or of the Union ; and it 
is only too evident that this jealousy and hos- 



ch. xv.] THE JUDICIARY. 277 

tility have manifested themselves in the legis- 
lation which has been above referred to, and by 
which the judges of so many of the States have 
been subjected to the ordeal of popular elec- 
tions, and their tenure of office degraded into 
one of a temporary and precarious character. 

This great revolution in the theory and prac- 
tice of constitutional government, as under- 
stood by the founders of liberty in the United 
States, is both a consequence of the progress 
of ultra-democratic principles in that country, 
and a powerful means of supporting them. 
The fundamental change in the principles of 
free government, as hitherto understood in all 
free countries, has taken effect, as has been 
seen, in no less than twenty-seven States of the 
Union. Its consequences upon their indivi- 
dual peace and welfare, upon the tone and 
character of the State Governments, and the 
security of those who live under them, are mat- 
ters beyond the scope of the subjects now under 
consideration. Within the period of a genera- 
tion, probably, this will have become abund- 
antly evident. But its probable results upon 



278 THE JUDICIAKY, [ch. xv. 

the Constitution of the United States is a 
question of general interest, and one imme- 
diately connected with the matter in hand. 

The independence of the judiciary is, to use 
the words of Mr. Justice Story, — 

" The citadel of the Constitution." . . " Nothing is 
more facile in republics than for demagogues, under artful 
pretences, to stir up combinations against the regular exer- 
cise of authority. Their selfish purposes are too often in- 
terrupted by the firmuess and independence of upright 
magistrates, not to make them at all times hostile to a 
power which rebukes, and an impartiality which condemns 
them. The judiciary, as the weakest point in the Consti- 
tution on which to make an attack, is therefore constantly 
that to which they direct their assaults, and a triumph here, 
aided by any momentary popular encouragement, achieves 
a lasting victory over the Constitution itself. Hence, in 
republics, those who are to profit by popular commotions 
or the prevalence of faction are always the enemies of a 
regular and independent administration of justice. They 
spread all sorts of delusions, in order to mislead the public 
mind and excite the public prejudices. They know full 
well, that without the aid of the people their schemes must 
prove abortive, and they, therefore, employ every art to 
undermine the public confidence, and to make the people 
the instruments of subverting their own rights and 
liberties."* 

* §§ 1611,1621. 



ch. xv.] THE JUDICIARY. 279 

Now, by the fifth Article of the Constitu- 
tion, the mode of proceeding to make amend- 
ments to it is as follows : — 

" The Congress, whenever two-thirds of both Houses 
shall deem it necessary, shall propose amendments to this 
Constitution, or, on the application of the Legislatures of 
two-thirds of the several States, shall call a convention for 
proposing amendments, which, in either case, shall be 
valid to all intents and purposes, as part of this Constitu- 
tion, when ratified by the Legislatures of three-fourths of 
the several States, or by conventions of three-fourths 
thereof, as one or the other mode of ratification may be 
proposed by Congress." 

Already the Legislatures of much more 
than "two-thirds of the several States" 
(twenty-seven out of thirty-one) have de- 
stroyed the independence of the judiciary, 
by rendering their offices elective, or their 
tenure for a few years only, or both. 

There can be no doubt that the proportion 
will steadily, not to say rapidly, increase ; for 
there can be no question of the ultra-demo- 
cratic tendencies of all the new States that are 
rising in the extreme west. When, there- 
fore, Oregon, Minesota, Utah (the Mormon 



280 THE JUDICIARY. [oh. xv. 

Valley), New Mexico, and Nebrasca, are, 
from territories, erected into States, which 
must happen in the course of a few years, the 
proportion of States which will have adopted 
this principle, as compared with those which 
have not, will be thirty-two out of thirty-six. 
It is to be expected also that the ultra- 
democratic principles will before long gain 
the ascendancy in the few older States which 
have hitherto withstood them. Kentucky 
yielded to them in 1850, and Virginia in 
1851. Even Massachusetts, where old asso- 
ciations, hereditary property, a more settled 
population, accumulated and rapidly-accu- 
mulating wealth, and a high standard of 
general education, have for the most part 
maintained the Whig party in the ascendant, 
— even Massachusetts, where, if anywhere in 
the Union, the anticipations of the founders 
of the republic have been answered, in com- 
bining the greatest latitude of popular power 
with social culture, intellectual progress, and 
firm government, — even that State is threa- 



ch. xv.] THE JUDICIARY. 281 

tened with the approaching triumph of the 
democratic party ; the propositions of the late 
Convention for certain alterations in their 
Constitution, in accordance with the principles 
of that party, having been only lost, as above 
adverted to, on the recent trial of strength, 
by (in round numbers) 5000 out of a total of 
130,000 votes. 

Already a large majority of both Houses of 
Congress belong to the democratic party. It 
may be anticipated, therefore, that by either 
mode of proceeding — either by the concur- 
rence of " two-thirds of both Houses of Con- 
gress," or " on the application of the Legisla- 
tures of two-thirds of the several States" — it 
will soon be perfectly within the power of that 
party in the Union to force an amendment 
of the Constitution, which shall deal with the 
independence of the judiciary of the United 
States as they have already dealt with it in 
their own several States. 

It is clear, indeed, that they have now the 
power of doing so. And it is equally in ac- 
cordance with their principles, with their well- 



282 THE JUDICIARY. [ch. xv. 

known energy and perseverance, with the in- 
terests of their party, and their presumed 
belief that thev are doin^ what is best for their 
country, that they will not be long in endea- 
vouring to exercise that power with effect. 

When they have done so, the judiciary of 
the United States will be no longer what it 
now is, " a co-ordinate power in the State," 
" the balance-wheel of the Constitution," " the 
only check upon the invasions of faction," and 
" the safeguard of the rights and liberties of 
the people against the tyranny of majorities."* 
It will be none of these things, and there 
will remain none in the then form of govern- 
ment of the United States. 

Under another point of view, also, the 
way is being prepared for this change, 
which is effecting the destruction of the 
independence and lowering the position of 
the judiciary in those numerous States above- 
mentioned. It is- from among the general 
body of the legal profession that the Pre- 
sident and Senate of the United States 

* § 1621. 



ch. xv.] THE JUDICIARY. 283 

must look for men of learning, integrity, 
and firmness, to fill the high and important 
functions of the Supreme Court, and the circuit 
and district courts of the Union. On this 
subject Mr. Justice Kent says, in the 1st vol. 
of his Commentaries, p. 443 : — " The United 
States are fairly entitled to command better 
talents, and to look for more firmness of pur- 
pose, greater independence of action, and 
brighter displays of learning, in the judiciary 
of the United States' Courts," than can be 
expected by those individual States " where 
the tenure of office of the judges is uncertain, 
and a liberal and stable provision is not made 
for their support." But if in those States, 
now so numerous, and likely to become more 
so, the position of the judge is degraded, the 
estimation of the whole legal profession will 
be altered, and men of ability, acquirements, 
and high feeling will not be found to devote 
themselves to it, as a career of honourable 
ambition as well as a means of arriving at 
wealth or competence. When this takes place, 
and when the standard of learning and the tone 



284 THE JUDICIARY. [ch. xv. 

of independence and honour has been lowered 
in that profession, where will be found the men 
to set public opinion right on points which re- 
quire study, thought, and elevation of mind to 
master ; to make a stand against propositions 
which they see will be fatal to true liberty ; 
or to act with fearlessness against public 
clamour? And where will then be the re- 
membrance of the fact, that in the celebrated 
" Declaration of Independence" of the 4th of 
July, 1776, one of the principal articles of 
complaint made against the Sovereign of this 
country was, that " he made judges dependent 
on his will alone for the tenure of their 
offices •, and the amount and payment of their 
salaries " ? # 

* Since the above was written, an ominous confirmation has 
come under my notice, of the tendency of public opinion in 
the United States in this particular. Professor Lieber, in his 
work on Civil Liberty and Self-Government (Boston, 1853), 
p. 190, thus adverts to a recent fact regarding it : — " It seems 
to me a strange anomaly that, as it would seem by a late reso- 
lution in the United States' Senate, the President has autho- 
rity to remove judges in the 'Territories.'" 

The principle is the same, whether acted upon in the " Terri- 
tories " or the States. The independence of the judges is equally 
threatened. To this subject Professor Lieber devotes a chapter 



ch. xv.] THE JUDICIARY. 285 

of earnest reasoning and solemn warning, in the endeavour to 
support the sound doctrine of the Constitution. He reiterates 
the elementary truth that " the immovability of judges is an 
essential element of civil liberty." He has also treated the 
subject very ably in a letter addressed to the German people in 
1848 : " Ueber die Unabhangigkeit der Justiz, oder die Freiheit 
des Rechts in England und in den vereinigten Staaten." Heidel- 
berg, 1848. 



286 CONCLUDING REMARKS, [ch. xvi. 



CHAPTER XVI. 



CONCLUDING EEMARKS. 



The questions to which Mr. Justice Story de- 
votes the few remaining chapters of his " Com- 
mentaries " are, Trial by Jury, Treason, the 
Bill of Rights, the Right of Petition, the 
Liberty of the Press, the Quartering of Sol- 
diers, General Warrants ; and upon these the 
law and practice of the United States are 
either identical with our own, or differ only in 
particulars which present no points of interest 
in a comparison between their practice and 
ours. The clause in the Constitution relating 
to slavery and fugitive slaves is touched upon 
very briefly, and without adding any particu- 
lars of general importance. The few other 
topics which he adverts to do not require spe- 



ch. xvi.] CONCLUDING KEMARKS. 287 

cific notice. But the following passages from 
his concluding remarks can never be read, 
either in that country or in this, without ex- 
citing admiration for his eloquence, sympathy 
with his jioble aspirations, and a participation 
in his forebodings and fears. 

" The fate of other republics — their rise, their progress, 
their decline, and their fall — are written but too legibly on 
the pages of history, if, indeed, they were not continually 
before us in the startling fragments of their ruins. They 
have perished, and perished by their own hands. Pros- 
perity has enervated them, corruption has debased them, 
and a venal populace has consummated their destruction. 
Alternately the prey of military chieftains at home, and of 
ambitious invaders from abroad, they have been sometimes 
cheated out of their liberties by servile demagogues, some- 
times betrayed into a surrender of them by false patriots, 
and sometimes they have willingly sold them for a price 
to the despot who has bid highest for his victims. They 
have disregarded the warning voice of their best statesmen, 
and have persecuted and driven from office their truestfriends 
They have listened to the fawning sycophant, and the base 
calumniator of the wise and the good. They have reve- 
renced power more in its high abuses and summary move- 
ments than in its calm and constitutional energy, when it 
dispensed blessings with an unseen and liberal hand. 
They have surrendered to faction what belonged to the 
country. Patronage and party, the triumph of a leader, 
and the discontents of a day, have outweighed all solid 



288 CONCLUDING KEMAEKS. [ch. xvi. 

principles and institutions of government. Such are the 
melancholy lessons of the past history of republics down to 
our own. . . . 

" If these Commentaries shall but inspire in the rising 
generation a more ardent love of their country, an un- 
quenchable thirst for liberty, and a profound reverence for 
the Constitution and the Union, then they will have 
accomplished all that their author ought to desire. Let 
the American youth never forget that they possess a noble 
inheritance, bought by the toils, and sufferings, and blood 
of their ancestors, and capable, if wisely improved and 
faithfully guarded, of transmitting to their latest posterity 
all the substantial blessings of life, the peaceful enjoyment 
of liberty, property, religion, and independence. The 
structure has been erected by architects of consummate 
skill and fidelity ; its foundations are solid ; its compart- 
ments are beautiful, as well as useful ; its arrangements 
are full of wisdom and order ; and its defences are impreg- 
nable from without. It has been reared for immortality, 
if the work of man may justly aspire to such a title. It 
may, neverthless, perish in an hour by the folly, or corrup- 
tion, or negligence of its only keepers — the people. Re- 
publics are created by the virtue, public spirit, and intel- 
ligence of the citizens. They fall when the wise are 
banished from the public councils because they dare to be 
honest, and the profligate are rewarded because they flatter 
the people in order to betray them."* 

Some considerations, which may not be 

* Story, §§ 1910-1914. 



ch. xvi.] CONCLUDING REMARKS. 289 

without their value in this country, are sug- 
gested by what has been exhibited of the 
principles of the Constitution of the United 
States, and of its mode of working, as deve- 
loped in. the first sixty-five years of its ex- 
istence. 

The advocates of extreme popular opinions 
in this country are dissatisfied with the prin- 
ciple on which the House of Commons has 
been hitherto constructed, and require that, 
instead of its being composed, as it is now, of* 
the representatives of all the interests, feelings, 
and opinions of the various classes and sections 
of society, from the highest, very nearly to the 
lowest, the preponderance being largely on the 
side of property, cultivation, high acquire- 
ments, and stable and hereditary instincts and 
convictions — it should be made to represent 
more completely and directly, if not almost 
exclusively, the numerical mass of the com- 
munity ; under the supposition that the inte- 
rests of the latter would then be better cared 
for, and that the interests first enumerated 
would, in some manner or other, take care of 

o 



290 CONCLUDING REMARKS, [ch. xvi. 

themselves, Were the advocates of these 
opinions to succeed in effecting this change, 
the j would establish a mode of government 
far more democratic than anything existing 
under the Constitution of the United States. 
They profess to desire to preserve the present 
form of parliamentary government by Queen, 
Lords, and Commons ; but, at the same time, 
to throw the balance of power completely into 
the scale of the numerical majority and their 
representatives in the House of Commons, in 
order that the will of that majority, as repre- 
sented at the moment, might be brought to 
bear at once and without delay upon the legis- 
lation of the country. If this were to be so, it 
is plain that neither the Upper House of 
Parliament nor the Crown could be permitted, 
either in theory or practice, to interpose delay, 
and their functions would be reduced to little 
more than giving a formal assent to the de- 
clared will of the Lower House. In fact, 
under whatever name it might be covered, the 
government of this country would have become 
a pure democracy. 



ch. xvi.] CONCLUDING KEMAEKS. 291 

Now"" we have seen that the Constitution of 
the United States has endeavoured to guard 
itself by every precaution that it is in the 
power of a republican constitution to adopt, 
against being, or if possible, ever becoming, 
a pure democracy. It is described by its 
framers as "a Constitution of limited and 
balanced powers ;" the democratic element in 
it is subjected to numerous and powerful 
checks, and in point of fact, when contrasted 
with the power and "influence" of the Presi- 
dent, and the higher and more independent 
position of the Senate, that element is greatly 
reduced in relative weight and authority, and 
is unable suddenly to overbear the other two 
branches of the Legislature. But above all, it 
has, above it, and the Senate, and the Presi- 
dent, the authority of the judiciary — the judges 
of the Supreme Court of the United States — 
not a subordinate, but, be it always borne in 
mind, a co-ordinate power in the State. It is 
that power which is charged, in the last re- 
sort, to check any the slightest inroads upon 
or deviations from the strict letter of the Con- 

o 2 



292 CONCLUDING EEMAEKS. [oh. xvi. 

stitution ; to oppose any possible invasions of 
democracy upon the distribution and balance 
of power, as established by the formal consent 
of the great body of the community ; to act in 
all emergencies threatening that balance, as the 
great conservative power of the State, able to 
declare " void and of none effect" any legis- 
lative attempts to overturn it. 

Such a power, above and paramount to any 
Act of the Legislature, we know nothing of 
under our system of government; yet, without 
it, a House of Commons, constituted as the ad- 
vocates of extreme opinions in this country de- 
sire, would be without check or control, and 
a mode of government would be established in 
this country as widely different from that pos- 
sessed, under their Constitution, by the people 
of the United States, as a limited constitu- 
tional government is from a pure democracy. 

But would the advocates of those extreme 
opinions desire to take a farther step, and 
endeavour to assimilate our institutions entirely 
to those of the United States ? If so, they 
must be then prepared for a change in the 



ch. xvi.] CONCLUDING REMARKS. 293 

mode of carrying on the business of legisla- 
tion, which will make it entirely different from 
that to which we have hitherto been accus- 
tomed. They must be prepared to abandon 
what we are accustomed to call " parliamen- 
tary government." Under the legislative sys- 
tem of the United States, parliamentary go- 
vernment does not exist. With us, if the 
Minister for the time being, in the ordinary 
course of things, has not the support of the 
majority of the House of Commons, he must 
resign, and give way to a ministry that has. 
Under the system of the United States, neither 
President nor Ministry have any absolute 
necessity for a majority in either House of 
Legislature, and have in many instances, 
carried on the Government for two, three* 
and four years, without it. The advocates 
of extreme popular opinions in this country 
wish to invest the House of Commons with 
an authority and power so direct and im- 
mediate in its action, as to be liable to little 
or no restraint from any other powers in the 
State. If they were to endeavour to arrive at 



294 CONCLUDING EEM ARKS. [ch. xvi. 

their object by inducing this country to adopt 
the institutions of the United States, they 
would very soon find that the present high 
and independent position of the House of 
Commons would have been exchanged for one 
in which the Senate would share with them 
the power over the public purse, and in which 
the President would be able by his " influence" 
to cause the supplies to be voted by majorities 
in both Houses adverse to his general policy. 
Moreover, they would discover, if the analogy 
between the two Legislatures in both countries 
were fully carried into effect, that, instead of 
the House of Commons being, as now, the 
most prominent of the two Houses of Parlia- 
ment in all matters of legislation, and by far 
the most powerful of the two, it would have 
been reduced to inferiority, both in position, 
in general estimation, and in power. 

I should be sorry if, in drawing compari- 
sons between our system of constitutional 
government and that of the United States, I 
should be thought by any one in that country 
to have been actuated by feelings in the least 



ch. xvi.] CONCLUDING REMAKES. 295 

degree approaching to hostility or unkindness. 
I have been compelled, by the evidence of facts, 
to show that their constitutional system, in its 
actual practice, has in several important points 
deviated from the path marked out for it by 
the letter and spirit of the Constitution, and 
declined from the standard therein held up to 
their admiration and reverence. I have shown 
this in the words of the ablest commentators, 
and of some of the most distinguished statesmen 
who have adorned the annals of their country. 
And I have been justified, by reference to the 
plain and open current of events in all parts 
of the Union, in inferring that the way is 
being prepared for still greater deviations from 
the letter and the spirit of the Constitution, by 
the successful attacks that have been made 
upon that which has been regarded as the very 
" citadel " of their institutions, the independ- 
ence of the judicial body. It may not be 
agreeable to many persons in the United States. 
that these matters should be brought forward 
into the general light, and v submitted to obser- 
vation in Europe. We are sometimes told also 



296 CONCLUDING REMARKS, [ch. xvi. 

that their institutions do not concern the people 
of Great Britain, and that, in commenting on 
them, we go out of our way gratuitously, in 
order to indulge passions of the lowest order 
and of the most contemptible kind. 

A bad compliment would indeed be paid to 
the Constitution of the United States, by any 
one in this country who would presume to say, 
that the institutions under which upwards of 
twenty millions of the Anglo-Saxon race had 
elected to live, did not concern him ; that their 
prospects of well-being, of intellectual, moral, 
and religious progress, of rational liberty and 
social happiness, were to him matters of no 
interest, and that they could have no effect 
upon the mind of this country. In point of 
fact, we have the very deepest interest in them. 
There are but two great systems of free go- 
vernment in existence, theirs and ours, and con- 
stitutional governments are now on their trial 
before the civilised world. They have to 
prove that moderate and rational liberty, 
besides contributing most to mere material 
well-being, is not inconsistent with firm govern- 



ch. xvl] CONCLUDING EEMARKS. 297 

ment, with truth and justice, with faith and 
reverence, with honour and honesty, with 
learning and taste, w T ith gentleness and obedi- 
ence, with imagination, with art, and with 
science, and with all these in their highest 
state of development, and therefore of their 
capacity to raise the civilised man above the 
level of low desires, and up to the highest 
point of intellectual and moral perfection at- 
tainable by his finite nature. We believe, in 
this country, that our system of government is 
the best yet devised, or rather yet unfolded in 
the mysterious order of Providence, for lead- 
ing to all those great objects. To defend and 
strengthen it, therefore, to remove its imper- 
fections and w T iden its basis is, to the English- 
man who thinks aright, among the first of 
duties ; for in so doing he is aiding to per- 
petuate a great inheritance, and perhaps to 
extend to other nations the means of arriving 
at those blessings which it is calculated to draw 
forth and foster. But if he is to scan the 
defects and probe the imperfections of his own 
system of government, with a view to amend, 

o 3 



298 CONCLUDING REMAKES. [ch. xvi. 

reanimate, and invigorate it, why should he 
not also look abroad for examples that he 
may profit by, or warnings of what he should 
avoid ? The Constitution of the United States 
challenges him to such inquiry ; for it was, dur- 
ing those cloudy days of political blindness on 
one side, and just resentment on the other, esta- 
blished in direct antagonism to our own, in 
many of its fundamental principles ; under the 
guidance of those new theories of government 
which rose into a hasty and immature pro- 
minence and popularity on the continent of 
Europe, in the midst of the heated passions 
and the material sufferings, the tyranny, the 
resistance, the moral anarchy, the scepticism, 
and the presumption, of the end of the 17th 
century, and the greater part of the 18th. 
We have a right to inquire how those theories 
work, and whether they encourage us to bor- 
row from, or warn us to avoid them. Into the 
petty details of what might be called by the 
various names of corruption, misgovernment, 
weakness, neglect, incapacity, wilful wrong, 
or omission of right, on either side, there is 






ch. xvi.] CONCLUDING REMARKS. 299 

no necessity, with a view to the present pur- 
pose, to enter. But if I have shown that a 
Constitution which claimed to be an improve- 
ment upon all other Constitutions that were 
ever designed by man, and especially upon our 
own, has in the first sixty-five years of its exist- 
ence given proof of defects which experience 
has not shown to exist in our own, and has de- 
clined from the high ideal which its framers 
claimed for it, I have done that for which I owe 
no apology to any one, and which, in a spirit of 
reverence for the wisdom of our own time- 
honoured institutions, in all their great funda- 
mental principles, and with a deep sense of the 
benefits which, under Providence, they have 
conferred upon this country, I rejoice to have 
,be enable to do. 



NOTES. 



Note I. (to Chapter VIII.)* 

The authors of the "Federalist" (Mr. Madison, Mr. 
Hamilton, and Mr. Jay), speaking the opinion of the most 
enlightened men of their time, asked themselves, when en- 
tering upon the great enterprise of framing a constitution, 
" whether societies of men are really capable or not of 
establishing good government by reflection and choice?" 
whether it is within the power of human wisdom at once 
to strike out a political system which shall combine the 
elements of freedom and authority in the measure required 
to satisfy the highest purposes of civil society ? They be- 
lieved themselves capable of that effort. They at the 
same time believed themselves to be the only people, not 
then free, who were capable of it. President John Adams, 
writing to the late Mr. Ei chard Sharp, in the year 1811, 
thus expresses himself on that subject : — 

" The people of America, from their singular situation, 
education,! occupations, and character, have gone through 

* I have placed these Notes in the order in wnich they may be 
read continuously, instead of in the order of the Chapters to which 
they refer. 

+ In municipal self-government, as well as political ; the former 
being the essential school for the latter. 



NOTES. 301 

all this (the severe trials of the Revolution). But, without 
any national pride, or any fastidious national antipathies, 
I cannot believe, from anything I have seen or read, that 
any other people are capable of it. In other nations, a 
revolution will be only an exchange of one absolute go- 
vernment for another. 

" Elective governments not only give full scope to the 
hopes of all men, but afford continual temptations to aspire ; 
and we have already seen very bold and daring strokes of 
a determined and desperate ambition."* 

In the many instances of failure in the attempts during 
the last sixty years to establish constitutional government 
in communities where there was not " intellect, informa- 
tion, and integrity enough to be depended upon through 
severe .trials,"! may be read the confirmation to a great 
extent of the above prognostications. In France, in par- 
ticular, the destruction of all faith, to so great an extent, 
among the educated classes, the consequent want of con- 
fidence between man and man, the rash surrender of 
sound sense to plausible theories, the sweeping away of 
everything from the land but a poor and unenlightened 
peasantry, have, in the period that has elapsed since 
the first revolution, brought about the all but literal 
fulfilment of the prophecy of Burke, uttered in 1790, 
" that if the present project of a republic should fail, all 
securities for a moderate freedom fail along with it ; all 
the direct restraints which mitigate despotism are removed; 
insomuch that if monarchy should ever again obtain an en- 
tire ascendency in France, under this or any other dynasty, 
it will probably be, if not voluntarily tempered at setting 
out, by the wise and virtuous counsels of the prince, the 

* Letters and Essays, by Richard Sharp, M.P., London, 1834, 
p. 98. 
f Ibid., p. 99. 



302 NOTES. 

most complete arbitrary power that has ever appeared on 
earth"* 

The experience of " elective government" in the country 
of Washington, of John Adams,, of Madison, of Hamilton, 
and of the other great men of the Ee volution, has, as we 
have seen, been already sufficient to justify their own mis- 
givings, to the extent, at the very least, of having afforded 
proof of the fact that both the basis of the Constitution 
which they founded, and its practical workings, are altered 
since their day in many important particulars, and both in 
the direction of pure democracy, in exchange for tha ; stable 
system of balanced powers which was the object of their 
aspirations and struggles. 

The experience of the world, from the very birth-day of 
ancient freedom, through the period of its heroic man- 
hood in the old republics, and up to this present hour, 
proves that political institutions, to be firm, just, equal, 
beneficent, and enduring, must be "not a creation, but a 
growth;" that they require many elements of food and 
nurture for their sound development ; and that the over- 
predominance of one leads to disease and decay. 

This over-predominance has been encouraged in modern 
times by such notions as " confiding in the instincts of 
humanity ;" " trusting to the principles of society in their 
action upon the nature and conduct of man; " "having an 
unlimited confidence in the human mind ; " " trusting 
implicitly to the innate sense of what is best for the 
interest of the individual and the community;" "sub- 
mitting cheerfully to what may be the declared will of the 
mass of the people, because it is their will ; and because, 
if wrong, they will soon find it out, and take a better 

* Burke's Reflections on the Revolution in France, pp. 303-4, 
vol. iv. of edit, of 1853. 



NOTES. 303 

course:" all omitting to take any sufficient account of 
human passions, and of their continual tendency (up to 
this period of the world at least) to sway human action, in 
opposition to all the efforts of the most enlightened reason, 
though strengthened, it may be, with all the panoply of 
faith. Such notions were well designated by the authors 
of the "Federalist" as "idle theories, which amuse with 
promises of exemption from the imperfections, the weak- 
nesses, and the evils incident to society" — "deceitful 
dreams of a golden age," from which it was time to 
awake to the practical maxim that they were " yet remote 
from the happy empire of perfect wisdom and perfect 
virtue." * 

" Representative bodies," says Mr. Jay, in a letter to 
Washington, in 1786, " will ever be faithful copies of their 
originals, and generally exhibit a chequered assemblage of 
virtue and vice, of abilities and weakness. The mass of 
men are neither wise nor good ; and the virtue, like the 
other resources of a country, can only be drawn to a point 
by strong circumstances ably managed, or a strong govern- 
ment ably administered."! 



Note II. (to Chapter VIII.) 

In the collection of " Letters of Eminent Men to George 
Washington," lately published by Professor Jared Sparks, J 
is one from Mr. Jay to Washington, from which I extract 

* Federalist, No. 6. 

T Story, vol. iv. p. 136. Edit, of 1833. 

J Correspondence of the American ^Revolution. By Professor 
Jared Sparks. Boston, 1853. 4 vols. 



304 NOTES. 

the following passage, as bearing upon the subject of the 
previous note, and as illustrative of the difficulties that 
beset the course of the statesmen of America, in their 
transition from the Confederation, which had so signally 
failed, to the Constitution; and of their fluctuations of 
mind before they could determine how to adjust the 
powers of the new government they were engaged in 
forming. 

"John Jay to Washington. 

"New York, January 7, 1787. 

" Dear Sir, — They who regard the public good with more 
attention and attachment than they do mere personal 
concerns, must feel and confess the force of such senti- 
ments as are expressed in your letter to me 

The situation of affairs calls not only for reflection and 
prudence, but for exertion. What is to be done? is 
a common question, but it is a question not easy to 
answer 

" Would the giving any further degree of power to Con- 
gress do the business ? I am inclined to think it would not." 

Mr. Jay proceeds to give his reasons for this opinion, 
founded on the selfishness and corruption already exhi- 
bited in that Assembly, and the tendencies of large 
assemblies " to misunderstand or neglect the obligations of 
character, honour, and dignity;" and he then proposes a 
more distinct division of the powers of the Constitution 
into legislative, executive, and judicial. 

He then adds : — 

"Shall we have a king? Not, in my opinion, while 
other expedients remain untried. Might we not have a 
Governor-General, limited in his prerogatives and dura- 
tion ? Might not Congress be divided into an Upper and 
a Lower House ; the former appointed for life, the latter 



NOTES. 305 

annually; and let the Governor-General (to preserve the 
balance), with the advice of a Council, formed, for that 
purpose, of the great judicial officers, have a negative on 
their acts ? Our Government should, in some degree, be 
suited to our manners and circumstances ; and they, you 
know, are not strictly democratical." * 

The whole scope of the learned work of John Adams,f 
(afterwards the second President of the Republic) written 
in the same year as the above letter (1787), is to prove, 
that no system of Constitutional Government can be just 
or durable that does not guard against the over-predomi- 
nance of any one of its elements. And he illustrates this 
principle by passing in review, in the most masterly 
manner, the Governments of all the ancient and modern 
Republics, of which classical or recent writers have left 
descriptions. 

He expresses his entire agreement with the principle 
laid down by Macchiavelli, in his remarkable letter to Leo 
X., on a scheme of reform for the State of Florence, in 
which he says, " Those who model a commonwealth must 
take such provisions as may gratify three sorts of men, the 
high, the middle sort, and the low."{ Of this Mr. 
Adams speaks as " this great truth, this eternal principle, 
without the knowledge of which every speculation upon 
government must be imperfect, and every scheme of a 
commonwealth essentially defective." § 

* Vol. iv. p. 153. 

*T The Defence of the American Constitutions. London, 1794, 
3 vols. 

% " Coloro che ordinano una Eepublica debbono dare luogo a tre 
quality de uomini, che sono in tutte le citta, cioe primi, mezzani, ed 
ultimi." — Macchiavelli's Works, vol. v. p. 246. [Dare luogo, " assign 
a place to," not "gratify."] 

§ Yol. ii. p. 242. 



306 NOTES. 

In several parts of his work he points to the existence 
in the United States, in his time, of these several ele- 
ments, " even in the northern States (especially in Massa- 
chusetts), as well as in the middle and southern ;" and if 
he had any fears for the future, it was that " the natural 
and artificial aristocratical body in every State " would be- 
come too powerful.* He considers, however, that they are 
sufficiently kept in check by the arrangements of the Con- 
stitution, which were, in his opinion, as nearly similar to 
our own as circumstances permitted, though not so much so 
as he desired. Upon our own Constitution he pronounces 
this eulogy : — 

" I contend that the English Constitution is, in theory, 
the most stupendous fabric of human invention, both for 
the adjustment of the balance, and the prevention of 
its vibrations, and that the Americans ought to be ap- 
plauded instead of censured for imitating it as far as they 
have. Not the formation of languages, not the whole art 
of navigation and ship-building, does more honour to the 
human understanding than this system of Government. 
The Americans have not indeed imitated it in giving a 
negative upon their Legislature to the Executive power ; 
in this respect their balances are incomplete, very much to 
my mortification." f 

The want of these due adjustments of the balance of 
power in a State must, he says, lead to continual changes 
and fluctuations. "The only way to prevent these evils is 
to establish the several classes and ordinances of the com- 
monw r ealth in such a manner that they may support them- 
selves ; and that they will always be able to do, when each 
rank has its due share of the administration, when every 
one knows his proper sphere of action, and whom he can 

* Yol. i. p. 371 ; vol. iii. p. 124. f Vol. i. p. 70. 



NOTES. 307 

confide in ; and, lastly, when no one has any occasion to 
wish for a change of Government, either because his ambi- 
tion is not thoroughly gratified, or that he does not think 
himself sufficiently secure under such an administration."* 



Note III. (to Chapter IX.) 

"A Constitution based upon extreme opinions leads 
infallibly to despotism." 

So spoke Niebuhr,f in accordance with all authorities 
who have dealt with the great question of political govern- 
ment in a truthful and impartial spirit, and on due ac- 
quaintance with the lessons of history. 

" The tyranny of the majority" is the danger ever im- 
pending in free governments, in proportion as they approach 
to pure democracies. 

This danger was present to the minds of the framers of 
the Constitution of the United States, and led them to 
bend their most earnest thoughts to devise the means 
by which "the superior force of an interested and over- 
bearing majority" might be prevented from disregarding 
the interests, and violating the rights of the minority. j 

Whatever may be the case up to this time with regard 
to the working of the general Government and Constitution 
of the United States, it is indisputable that in the indi- 
vidual States the complaints are frequent of the exercise 
of this species of tyranny by the majority which, for the 

* Vol. ii. p. 250. 

f Life and Letters of Kiebuhr, vol. iii. p. 119. London, 1852. 

i Federalist, No. 10. 



308 NOTES.] 

time being, may wield the powers of the State Govern- 
ment. 

Mr. Justice Kent argues strongly against the sudden 
changes in legislation in the individual States, which the 
alternate succession of opposite parties to power brings 
with it, each supported, perhaps, only by narrow majorities, 
and holding office but for a short period. He says : * — ■ 

"A mutable legislation is attended with a formidable train 
of mischiefs to the community. It weakens the Govern- 
ment, and increases the intricacy of the laws, hurts credit, 
lessens the value of property, and it is an infirmity very 
incident to republican establishments, and has been a con- 
stant source of anxiety and concern to their most enlight- 
ened admirers. A disposition to multiply and change 
laws upon the spur of the occasion, and to be making con- 
stant and restless experiments with the statute code, seems 
to be the natural disease of popular assemblies." 

And he commends the new Constitution of Rhode Island, 
adopted in 1843, for its tendency to prevent those evils. 

" The Constitution of Rhode Island, which was orga- 
nised and went into operation in 1843, has constituted the 
Senate of that State upon conservative principles, while 
the House of Representatives is constructed upon the basis 
of population, giving to each city and town a representa- 
tion in a ratio to its number of inhabitants. The Senate 
is composed of only one member from each city and town, 
so that the legislative power cannot be wielded by over- 
whelming numbers in a few great manufacturing towns or 
cities, to the oppression of the agricultural towns. It is a 
salutary and provident check to the tyranny of majorities 
over minorities, "f 

* Yol. i. of his Commentaries, p. 227. 
f Vol. i. p. 227, note. 



NOTES. 309 

The following, which I take from a recent American 
paper, is a somewhat curious instance of an opposite com- 
plaint — opposite in terms, but the same in substance — 
which shows how naturally men are disposed to be dissa- 
tisfied with laws imposed upon them summarily by narrow 
majorities, and which they may hope shortly, by some 
equally narrow majority, to repeal. 

" Ohio, July, 1853. 

" One hundred and eighty-five thousand electors in this 
State of Ohio have (by their differences and divisions) 
chosen to be governed by one hundred and seventy 
thousand for some years past. The minority have ridden 
rough-shod over the majority, fettering them .... 
robbing them by unequal taxes," &c, &c. 

I observe, also, in the American papers, complaints that 
the " Maine Law," as it is called, forbidding the sale of 
spirituous liquors, except under certain circumstances, is 
being forced upon the people of some States by small 
majorities, in spite of a strong reluctance to it on the part 
of minorities, on the ground, among others, that such a 
law exceeds the true province of legislation. In the State 
of New York, this law passed the Senate by a majority of 
four only. In Rhode Island it was carried, but the 
democratic majority is said to have appointed officers 
hostile to the law, who prevent its being executed. "In 
Boston, its effect is defeated by the number of licences 
granted. The new Legislature, chosen in November, 1852, 
sustained the law. An attempt to repeal it failed, and a 
bill to make it more stringent failed also ; in the House 
of Representatives the numbers were equal, and it was lost 
in the Senate by one vote." 

The particular law now exciting the disapproval of large 
minorities, yet forced upon them in opposition, as they 



310 NOTES. 

think, to all sound precedent, is of comparatively little 
importance, except as illustrating the principle, which may 
be at present contemplated at work on a far larger scale 
and on vital points, in the rapid advance of pure democracy, 
even in the older States, over the old mixed and balanced 
principles of constitutional government, with all the con- 
sequences of internal and external policy therein in- 
volved. This change must be all the more painful to the 
party opposing it, because brought about in many instances 
by narrow majorities and within a short space of time. It 
may be submitted to, under the conclusion that it is, in that 
country, a part of " a general and inevitable law" of social 
and political change ; but it is not the less discordant to all 
the feelings, habits, and opinions hitherto recognised as the 
foundation of their government, and as giving it its title 
to the respect and confidence of the world. Its ulterior 
consequences are beyond the ken of the present generation. 
They might be calculated with somewhat more confidence 
were not the problem complicated by the continual addi- 
tion to the population of the United States of such large 
numbers of the worst subjects of European Governments — 
men bringing with them the most embittered feelings, and the 
most false and pernicious theories of politics and social life. 
The actual spread of ultra-democracy in the United States 
contradicts the theory, and has falsified the expectation, 
that these importations of extravagant opinion and per- 
verted principle will be absorbed and neutralised by the 
sounder elements with which they mix. They find too 
many congenial ingredients, to which they but add a new 
vigour. It must be many years yet before any one can 
presume to say fohich is the most probable — acquiescence 
in this ultra-democratic predominance, or resistance. M. 
De Tocqueville has already said that "if the free institu- 
tions of America are to be destroyed, it will be owing to 



NOTES. 311 

the tyranny of majorities, driving minorities to despera- 
tion."* The resource of minorities under such circum- 
stances has ever been, through all periods of history, one 
only — the surrender of their own liberties to some one 
man, capable of defending them against a greater oppres- 
sion ; and the easy and natural steps by which, in pure 
democracies, this transition takes place, has been lately 
described with philosophical accuracy by Dr. Lieber, Pro- 
fessor of History and of Political Philosophy and Economy 
in the State College of South Carolina, in his work " On 
Civil Liberty and Self-Government."f Professor Lieber 
says truly " That the multitude are necessarily led by a 
few, or by one ; and thus we meet in history with the 
invariable result that virtually one man rules where the 
absolute power of the people is believed to exist. After a 
short interval, that one person openly assumes all power, 
sometimes observing certain forms of having the power of 
the people passed over to him. The people have already 
been familiar with the idea of absolutism ; they have been 
accustomed to believe that wherever the public power 
resides it is absolute and complete ; so that it does not 
appear strange to them that the new monarch should pos- 
sess the unlimited power which actually resided in the 
people or was considered to have belonged to them. There 
is but one step from the ' all-powerful people' (the 'peuple 
tout-puissant'), if indeed it amounts to a step, to an 
emperor all powerful."]: And he intimates that the changes 
that have actually occurred in history, from democracies, 
to absolutism in the hands of one man, are attributable to 
the fact that the people "consciously or instinctively" 



* De la Democratic en Amerique, vol. ii. eh. 7. 
f London, 1853, p. 331. 
X Page 330. 



312 NOTES. 

surrendered their liberties, " because the ancient institu- 
tions had become oppressive." 



Note IV. (to Chapter XIII.) 

There is no circumstance which is more directly pre- 
paring the way for the transition above-mentioned (from 
ultra-democratic tyranny, to absolutism in the hands of one 
man) than the growing habit of external aggression, and 
the wide-spread anxiety among the democratic party in 
the United States to take a part in the affairs of Europe. 
It is superfluous to refer to the solemn warnings be- 
queathed by Washington, and by all the great men of the 
revolution, on this momentous subject. From the moment 
that the fellow-countrymen of Washington act in opposi- 
tion to that advice, they will have passed a turning-point 
in their history, beyond which they will have before them 
" sea without shore." 

The authors of the " Federalist," seeing in the possi- 
bility of internal war between the individual States the 
great danger to liberty, employed all their reason and 
eloquence in softening down the causes of difference, and 
in pointing out the inevitable consequences should hostili- 
ties unfortunately arise. Their arguments apply with even 
greater force to the consequences which would ensue from 
their involving themselves with foreign powers by an 
aggressive policy, which those powers would feel compelled 
to resist. The paper, No. 8, attributed to General Ha- 
milton, urges that war, or the apprehension of war, which 
requires a state of constant preparation, infallibly produces 



NOTES. 313 

the necessity for standing armies; that States having 
recourse to thern, and to " a more regular and effective 
system of defence by disciplined troops and by fortifica- 
tions," must at the same time " strengthen the executive 
arm of Government ; in doing which their Constitutions 
would acquire a progressive direction towards monarchy. 
It is of the nature of war to increase the executive at the 
expense of the legislative authority."* " But in a country 
where the perpetual menacings of danger oblige the Go- 
vernment to be always prepared to repel it, her armies 
must be numerous enough for instant defence. The con- 
tinual necessity for his services enhances the importance 
of the soldier, and proportion ably degrades the condition 
of the citizen. The military state becomes elevated above 
the civil. "f 

General Hamilton distinguishes the case of Great Bri- 
tain from that of the military powers on the Continent, 
and shows that our insular situation and the spirit of our 
government expose us to no such danger. But if it be 
true, in the words of Mr. Justice Story, that " the best 
talents and the best virtues are driven from office by 
intrigue or corruption, or by the violence of the press and 
of party ; " if the complaints so often uttered in the United 
States, that men of cultivation, of high principle, and ma- 
ture wisdom are more and more indisposed to the duties 
of political life, are well founded, then must the tendency 
increase to select military men for office, if for no other 
reason, at least for this, that they will have had more 
experience in affairs, and know how to govern men. And 
the necessity of being governed, will, irrespective of the 
aspirations after conquest and a military name, be more 
and more pressing upon the people of the United States, 

* Page 43. t p age 45. 

P 



314 NOTES. 

in proportion as ultra-democracy extends its dislocating 
and disturbing influences ; and while " elevating the mi- 
litary state above the civil" in opinion, will lay the sure 
foundations of its predominance in real power. 



Note V. (to Chaptek XV.) 

The great constitutional check upon the tyranny of ma- 
jorities (the independence of the judiciary), referred to by 
Mr. Justice Kent in the following passage, has since, as we 
have seen, been entirely abolished in more than five- 
sixths of the individual States, and is threatened in ttie 
Constitution of the United States, by the course of events 
and of public opinion : — ■ 

" M. De Tocqueville is of opinion, that if the free insti- 
tutions of America are to be destroyed, it will be owing to 
the tyranny of majorities driving minorities to desperation. 
The majority constitutes public opinion, which becomes 
a tyrant, and controls freedom of discussion and inde- 
pendence of mind. This is his view of the ques- 
tion, and English writers on the institutions of society in 
this country have expressed the same opinion. If there 
was no check upon the tyranny of legislative majorities, 
the prospect before us would be gloomy in the extreme. 
But in addition to the indirect checks of the liberty of the 
press, and of popular instruction, and of manners, religion, 
and local institutions, there are fundamental rights de- 
clared in the constitutions, and there are constitutional 
checks upon the arbitrary will of majorities, confided to the 
integrity and independence of the judicial department. M. 
De Tocqueville seems to be deeply impressed with the 



NOTES. 315 

dangers in a democracy, of the corrupting and controlling 
power of disciplined faction, and well lie may be. The 
most dangerous and tyrannical of all crafts is party or 
political craft. The equal rights of a minor party are dis- 
regarded in the animated competitions for power, and if it 
were not for the checks and barriers to which I have 
alluded, this would fall a sacrifice to the passions of fierce 
and vindictive majorities."* 

" Without independent judges," says Mr. Justice Story, 
" the Constitution would become a democracy with un- 
limited powers."! 

Professor Lieber, in his work above referred to, " On 
Civil Liberty and Serf-Government," denounces the prac- 
tice of the election of judges by the people in the terms 
which it deserves : — 

" As to the election of judges by the people themselves, 
which has now been established in many of the United 
States, it is founded, in my opinion, on a radical error — 
the confusion of mistaking popular power alone for liberty, 
and the idea that the more the one is increased, in so much 
a higher degree will the other be enjoyed ; as if all power, 
no matter what name be given to it, if it sways as power 
alone, were not absolutism, and had not the inherent 
tendency, natural to all power, to increase in absorbing- 
strength. All despotic governments, whether the abso- 
lutism rests with an individual or the people (meaning, of 
course, the majority), strive to make the judiciary depen- 
dent on themselves. Louis XIV. did it, and every abso- 
lute democracy has done it." | "Where the people are 
the first and chiefest source of all power, as is the case 

* Kent's Commentaries, vol. i. p. 450. 
f Story, vol. i. p. 482. Edit, of 1853. 
J Page 184. 

p 2 



316 NOTES. 

with us, the electing of judges, and especially their election 
for a limited time, is nothing less than an invasion of 
the necessary division of power, and a bringing of the 
judiciary within the influence of the power-holder."* 

Against the practice of electing them for short periods 
only, and paying them " illiberal salaries," Professor Lie- 
ber directs some strong arguments, tending to prove that 
the result, however it may for a time be delayed, must 
ultimately be the inferiority of the character and abilities 
of those who occupy the judicial bench, the consequent 
jeopardy of true freedom, and the loss of that protection 
which every honest citizen has a right to expect from the 
upright and able administration of the law. 



Note VI. 

By chapter 9 of the Acts of Massachusetts, 1843, the 
Senate and the House of Representatives concurred in re- 
ducing the salaries of the principal public officers of the 
State, and among them, those of the judges of the Su- 
preme Court (together with the State judges): the Chief 
Justice to 3000 dollars (£600), the Associate Judges of 
the Supreme Court to 2500 dollars. 

In the inaugural address of Governor George N. Briggs 
for 1844, His Excellency dwells at some length, and with 
many expressions of public congratulation, on the great 
progress in wealth made by the small and naturally barren 
State of Massachusetts, especially in recent years, and he 

* Page 185. 



NOTES. 317 

then turns, "from a sense of official duty," to the reduc- 
tion of salaries made by the Act of the previous year. He 
refers to the 29th Article of the Bill of Eights, which says, 
that "it is essential to the preservation of the rights of 
every individual, his life, liberty, property, and character, 
that there be an impartial interpretation of the laws and 
administration of justice. It is the right of every citizen 
to be tried by judges as free, impartial, and independent 
as the lot of humanity will admit ; " and accordingly, that 
" the judges of the Supreme Court should hold their 
offices as long as they behave themselves well, and that 
they should have honourable salaries, ascertained and esta- 
blished by standing laws." 

The Governor then proceeds to show, that, " by the 
established laws of the Commonwealth," the above salaries 
had been respectively 3500 and 3000 dollars, and he 
argues with great energy, that " permanence in their ap- 
pointments," and "honourable salaries," were both essen- 
tial to the freedom and impartiality of judges, and that 
low and inadequate salaries are not "honourable" salaries. 
Their salaries, he says, had been left unchanged for sixty 
years, by "more than sixty* different Legislatures." 

His Excellency warns the Legislature against the con- 
sequences of yielding to this "false economy," and inti- 
mates that it has its origin in party feeling and in motives 
of faction. "When the open and manly champions of 
equal and just laws sink into the designing advocates of 
party, and the divided masses range themselves under 
their selfish leaders, . . the morals of the community 
suffer, and liberty itself is endangered." . . "A ma- 
jority which uses its power for mere party purposes, and 

* Constitution of Massachusetts, March, 1780. First Act passed 
28th November, 1780. 



318 NOTES. 

disregards the interests and tramples on the rights of the 
minority, is a despotism. It is no less odious and oppres- 
sive because it is wielded by many, instead of one hand." 

In 1853 the salaries of the judges in twenty-one States 
ranged from 1200 to 2000 dollars (£250 to £400); in five, 
from 2000 to 3000 dollars : in four, from 3000 to 6000 
dollars; in California, from 2000 to 10,000 dollars. 



Note VII. (to Chapter XV.) 

The excuse which I have commonly heard assigned for 
the increasing practice of taking away the appointment of 
judges from the Executive in the individual States, and 
giving it to the Legislature or to the people, is, that the 
power of appointment by the Executive was abused for 
political purposes or personal objects, and that the Execu- 
tive could not, as a rule, be trusted to make these appoint- 
ments with fairness, and with a paramount regard to the 
fitness of the individual for the duties of so important an 
office. 

If this general imputation was unfounded, a great poli- 
tical wrong has been educed from great personal injustice. 
If it was true, it is a lamentable proof that political in- 
trigue had, in many instances, placed in the position of the 
Executive of a State, men whose moral qualities rendered 
them undeserving of that high trust. 

But the power of appointing judges is not the only 
power in reference to the administration of justice, of 
which it is sought to deprive the Executive in many of the 
individual States. A strong opinion appears to be gaining 



NOTES. 319 

ground, that it will be expedient also to deprive them of 
the power of pardon. 

Dr. Lieber, at p. 164 of his work above quoted, thus 
expresses himself on this subject : — 

" The only case in which our executives have a real 
vetitive [?J power, is the case of pardon, and most unfor- 
tunately it is used in an alarming degree, against the 
supremacy of law and the stability of right — both essential 
to civil liberty. I consider the indiscriminate pardoning 
so frequent in many parts of the United States, one of the 
most hostile things now at work in our country to a per- 
fect government of law. In the only case, therefore, in 
which we have a real veto power, we ought greatly to mo- 
dify it." 

He pursues this question in a paper written by himself, 
and published by the Legislature of New York, and which 
he gives in his Appendix.* In this paper he goes into 
much detail with respect to the facts in the various States, 
the opinions of many persons of authority regarding them, 
and the suggestions made for some alterations which might 
guarantee the community against so serious an abuse. Also, 
after referring to the work of MM. De Tocqueville and 
De Beaumont, in 1832, in which they expose " the fright- 
ful abuse of the pardoning power in the United States in 
general," and after quoting a statement "that the New 
York Committee had ascertained that there are men who 
make a regular trade of procuring pardons for convicts, by 
which they support themselves," he does not hesitate to 
add the following grave accusations against the governor 
of one of the " large" States of the Union : — 

" To this statement we have now to add the still more 
appalling fact, which we would pass over in silence if our 

* Pages 390-408. 



320 NOTES. 

duty permitted it, that but a short time ago the governor 
of a large State — a State amongst the foremost in prison 
discipline — was openly and widely accused of having taken 
money for his pardons. We have it not in our power to 
state whether this be true or not, but it is obvious, that a 
state of things which allows suspicions and charges so de- 
grading and so ruinous to a healthy condition of public 
opinion, ought not to be borne with. It shows that leaving 
the pardoning privilege, uncontrolled in any way, to a 
single individual, is contrary to a substantial government 
of law, and hostile to a sound commonwealth."* 

To this he subjoins the following note : — 

" While these sheets are passing through the press, the 
papers report that the governor of a large State has par- 
doned thirty criminals, among whom were some of the 
worst characters, at one stroke, on leaving the guberna- 
torial chair." 

Among the conclusions which Dr. Lieber proceeds to 
draw are the following: — 

" That a wide-spread abuse of the pardoning power 
exists, and has existed at various periods. 

" That the abuse of the pardoning power produces cala- 
mitous effects. 

" That the Executive in our country is so situated, that, 
in the ordinary course of things, it cannot be expected of 
him that he will resist the abuse, at least that he will not 
resist it in many cases." 

The individual States are ever anxious to keep alive the 
memory of the fact that they are sovereign States. Many 
of them number upwards of a million of inhabitants ; one 
upwards of three millions. At their head — the type of 
that sovereignty, the symbol of their independent exist- 

* Page 397. 



NOTES. 321 

ence, the assertor of the majesty of their law, the repre- 
sentative of their dignity, collective and personal — is 
placed, by their suffrages, their executive officer, their 
Governor. Yet, throughout the Union, either calumny has 
basely cast upon many of those exalted public servants the 
accusation, that for the sake of obliging some political par- 
tisans, or for the sake of a few hundred dollars, they will 
recklessly throw back upon society its worst criminals; 
or a grave conviction is establishing itself in the public 
mind, of the necessity of removing from them the snare, 
arising either from the smallness of their incomes, or their 
precarious tenure of power, which tempts to such a degrada 
tion of themselves, and of the office they hold. 

The salaries of the governors of thirteen States do not 
exceed 1500 dollars ; of fifteen, from 1500 to 3500 dollars ; 
of one, 4000 dollars ; of one, 6000 dollars ; of California, 
10,000 dollars. 



Note VIII. (to Chapter XVI.) 

As introductory to some sound opinions of Mr. Justice 
Kent, on the subject of the transmission of property in the 
United States, * I add the substance of an elaborate note 
in which he traces the current of opinion upon that ques- 
tion in ancient and modern times. 

" The transmission of property by hereditary descent, 
from the parent to his children, is the dictate of the 
natural affections, but the distribution among the children 
has greatly varied in different countries." 

* Commentaries, vol. iv. pp. 374-381. 

p 3 



322 NOTES. 

" If some have thought that a ' natural' equality ' be- 
longed to the lineal descendants in an equal degree,' others 
have attached more importance to the fact of the eldest 
son being the "natural substitute for the want of a pa- 
ternal guardian to the younger children.' " 

" The law of Moses gave the eldest son a double por- 
tion." 

" In Athens the males took equally, and were preferred 
to females." 

" In Rome, the law of the Twelve Tables, in cases 
of intestacy, admitted equally males and females to the 
succession." 

" After various changes, excluding and including fe- 
males, Justinian, by bis 118th Novel, admitted males and 
females to an equality in the right of succession to in- 
testates, and preferred lineal descendants to collaterals. 

" The law of descent in the provinces of France before 
the Revolution of 1789, was exceedingly various, and far 
exceeded in variety that of the several American States. 

" In the southern provinces (pays de droit ecrit) the 
succession to intestates was generally according to the 
118th Novel of Justinian, to all the children, male and 
female equally. 

" But in the other provinces (pays coutumiers) there was 
much difference even in the lineal line. In the ' Nouveau 
Coutumier de France et des Provinces, connues sous le 
Nom des Gaules,' it was stated that the customs amounted 
to 547. in some, the eldest son took the entire estate. 
In most of the provinces he was allowed advantages more 
or less considerable. In some, the married daughters 
were excluded ; in others, unmarried daughters, as against 
male children. In the collateral line, the modifications 
and diversities of succession were infinite. 



NOTES. 323 

" The decrees of the Constituent Assembly of 15th 
March, 1790, and 8th April, 1791, first abolished the 
rights of primogeniture and preference of males, in the 
succession to intestates' estates, following in that respect 
the law of Justinian ; and after a distressing series 
of changes, retrospective decrees, confusion, and in- 
justice, the French law of succession was permanently 
regulated by the ' Code Napoleon;' following the ' Novel' 
of Justinian as to the doctrine of representation in the 
descending line (Code Civil, No. 739, 740, 745), but 
making the distribution compulsory in all cases. 

" In many of the South German States, the Code 
Napoleon has been retained in force since its introduction 
by the French at the period of their conquests, as on the 
Ehine, in Luxemburgh, in the Grand Duchy of Nassau, 
and in parts of Westphalia. 

" In Prussia and Austria the law varies greatly, inclining 
in some provinces more towards the retention of the in- 
heritance by the eldest or one of the other sons, in other 
provinces towards its subdivision. 

" In Denmark, by an ordinance of 1769, primogeniture 
gave a title to a moiety of the estate of an intestate." 

"In Spain, the law of equal partition applies, except 
where estates are fettered by an entail, and as nearly all 
are, the law of equal partition is of comparatively little 
consequence."* . . 

" In several of the American colonies, before the Revo- 
lution, the English law of primogeniture prevailed in the 
distribution of the estates of intestates. It prevailed in 
Rhode Island until the year 1770 ; and in New York, 
New Jersey, Virginia, the two Carolinas, and Georgia, 
until the Revolution; and in Maryland until 1715. 
* Page 381. 



324 NOTES. 

" Iii Massachusetts, Connecticut, and Delaware, the 
eldest son of an intestate had only a double portion, and 
this continued in Connecticut until 1792, when the law 
giving the eldest son a double portion was repealed. In 
Pennsylvania, by the law of 1683, the law of primogeni- 
ture was abolished, but the Act still gave the eldest son a 
double portion, and so the law of Pennsylvania continued 
until 1794. The Act of Massachusetts, in 1692, did the 
same. 

" In the ' Abstract of the Laws of New England,' pub- 
lished in 1655, it was ordered that inheritances, as well as 
personal estates, should descend to the next of kin of the 
intestate, assigning a double portion to the eldest son. 

" The old New England laws spoke of this double por- 
tion as being ' according to the law of nature and the dignity 
of birthright.'"* 

" The Ordinance of Congress for the government of the 
North-Western Territory,! provided that the estates, with- 
in the territory, of persons dying intestate, should go to 
the children, and the descendants of a deceased child, in 
equal parts. . . . But this law was to be subject to 
future legislative alteration, though it is presumed to be 
still the general law of descent in all those States and 
districts comprising what, in 1787, was the territory of the 
United States north-west of the river Ohio, except in the 
instances hereinafter mentioned." 

" With respect to the general law regarding the power 
of creating deferred estates, it is the same in all the States 
of the Union, except New York, namely, ' that an executory 
device of real or personal estate is good (as in England) if 
limited to vest within the compass of twenty-one years after 
* Mass. Historical Collections, vol. v. p. 178. 
f 13th July, 1787. 






NOTES. 325 

a life or lives in being.' The only alteration made in the 
law of the State of New York by the revised statute of 
a.d. 1830, was that this statute will not allow the absolute 
power of alienation to be suspended for a longer period than 
during the continuance of not more than tico lives in being 
at the creation of the estate." 

" The English law allows of the limitation to any num- 
ber of lives in being, and for twenty-one years and nine 
months afterwards." 

Thus far as regards the general course of law on this 
subject in most of the civilised countries of the world in 
ancient and modern times. On the questions of social 
policy and abstract right involved in these various and op- 
posite laws and customs, the opinions of men are likely to 
continue as various as the laws and customs themselves. 
On the one hand, it will be argued that the feeling of 
natural equity is better satisfied by the equal partition of 
inheritances. Also, when regarded from the political point 
of view, the practice of equal partition agrees more with 
the theory that an universal participation in political 
power is a matter of right, and not a question of ex- 
pediency. On the other hand, it is denied that there is 
any such principle of natural equity involved, as to esta- 
blish a right or a claim on the part of the children to an 
equal partition of the father's property ; that it is a ques- 
tion of discretion, and of practical wisdom, with a view to 
the best interests and the ultimate welfare of the whole 
family ; and that the experience of successive generations 
in any particular country is the index and the guide to the 
practice most suitable to that country. The practice of our 
own country is seen to tend to the accumulation of capital, 
and consequently to all that power, to all those vast enter- 
prises, and to all those great achievements, which accumu- 



326 NOTES. 

lated capital can alone produce ; it improves and extends 
agriculture, stimulates and sustains manufactures, diffuses 
commerce through every sea, and brings back to the doors 
of a whole nation, prosperity, independence, wealth, and 
every element of material comfort. In a higher point of 
view, it gives opportunities for the purest and most refined 
enjoyments, leads to the most elevated intellectual and 
moral culture, and carries forward civilisation to the utmost 
bound attainable under the guidance of and in subordina- 
tion to that culture. The contrary practice of other coun- 
tries, in its different degrees, is seen to lead to dif- 
ferent results in many particulars. France presents one 
phase of the effect of the principle of the subdivision of 
inheritances, which is there compulsory. All independent 
centres of power and local influence have been swept 
away by that law, and consequently it has cost no great 
effort to extinguish her liberties. Under the operation 
of the same law, poverty has stricken the Grand Duchy 
of Nassau, the Grand Duchy of Luxembourg, the Rhine 
Provinces, and every portion of German territory where 
it prevails. Mr. Justice Kent states very fairly his own 
opinion upon the subject, which, while candid towards 
other countries whose law or custom differs from his 
own, admits the principle that, even in his own coun- 
try, the custom of "keeping inheritances unbroken" is 
in a material point of view, desirable. There are very 
many persons in his country who do not hesitate to add 
that it would be desirable in a moral and political point 
of view also. 

Mr. Justice Kent's words are : — 

" The policy of the measure will depend upon circum- 
stances, and is to be considered in reference to the state of 
society, the genius of the government, the character of the 



NOTES. 327 

people, the amount of cultivated land, the extent of terri- 
tory, and the means and inducements to emigrate from one 
part of the country to another." . . . 

He proceeds to say, — " without undertaking to form 
an opinion as to the policy of primogeniture under the 
monarchical government of England," — that in his own 
country at least, — 

"The extraordinary extent of unsettled territories, the 
abundance of uncultivated land in the market, and the 
constant stream of emigration from the Atlantic to the 
interior States, operate sufficiently to keep paternal in- 
heritances unbroken. The tendency of these causes, as 
experience in the eastern States would seem to confirm, is 
rather to enlarge than to abridge them ; and if the inheri- 
tance will not bear partition without injury to the parties 
interested, the eldest son in some of the States is allowed 
to elect to take the whole entail to himself, on paying to 
the other heirs an equivalent to their shares in money, and 
on his refusal, the same privilege is allowed to the other 
sons successively."* 



Note IX. (to Chapter XVI.) 

The above review of the actual state of the law of suc- 
cession in the United States, suggests considerations to a 
certain extent at variance with the popular impressions 
on that subject. 

It is undoubtedly true that the general practice in re- 

* Pages 384-5. 



328 NOTES. 

gard to the succession of property in that country has, since 
the separation from England, been to distribute it by will 
among all the children. And to this practice, M. De Tocque- 
ville, in one of the most instructive chapters of his masterly 
work (Chapter III., on the Social State of the Anglo- 
Americans), attributes that complete ascendancy of the 
democratic element, which, having first established itself 
in the old States of the east and south, has now embraced 
the whole west, where it must long bear sway without the 
shadow of a competitor. M. De Tocqueville expresses 
" astonishment that public writers, ancient and modern, 
have not attributed to the laws respecting succession a 
greater influence over the march of human affairs." He 
says that the legislator, after having disposed of that law, 
may, in reference to the basis of power, repose for ages ; 
for after once giving the impulse to the movement the 
machine acts of its own accord. And with no disguised 
reference to the state of things in his own country, he 
represents the action of that principle " as dividing, dis- 
tributing, scattering, property and power;" "pounding 
to pieces, or bursting into fragments everything that 
resists its passage ; now raising itself up, now prostrate 
on the soil, until the only substance it presents to sight 
is that of a moving and impalpable dust, on which sits 
democracy." 

That this is the true solution of the rapid spread of 
purely democratic legislation in all the individual States, 
as recorded by Mr. Justice Kent, in the passages I have 
quoted, and as seen in what has occurred since he wrote in 
1844, there can be no room to doubt; and it remains for 
time to show how long a highly-conservative system of 
general government can consist with a thoroughly demo- 
cratic political organisation of the individual States. 



NOTES. 329 

But other reflections are suggested by a reference to 
the actual state of the law as to successions in the United 
States, to which I venture to think that some force is to 
be attributed. 

The power of entail still exists in all the States, almost 
precisely as in this country. One State only, New York, 
has adopted a limitation upon it, of no essential import- 
ance. 

It has been seen (Chapter I.) how strongly the feeling 
in favour of entails prevailed in nearly all the States in 
the early days of their colonial history — in a few of them 
even more so than in the parent country ; and that in 
some instances the law dividing the estates of intestates 
among all the children was not adopted until after the 
separation. The principle, moreover, of preferring the 
eldest son in those cases is still, to a certain limited extent, 
adopted in nearly all the laws of the individual States. 

I think it is impossible to deny that these facts indicate 
the depth and tenacity of the old principle, and that there 
is something in it that clings to the convictions of men, 
notwithstanding the plausible theories of more general 
benevolence, and the sanguine hopes of better government 
and more diffused prosperity, by which they had been 
allured. 

The fact is, that of late years some of the largest pro- 
perties accumulated by commerce have, even in the 
northern States, been distributed by will, very much in 
accordance with the custom of primogeniture. In the 
southern States (I judge from the expressions of many 
gentlemen from that part of the country) no secret is 
made of the desire to counteract the united effects of the 
modern law as to intestacy, and the course of events, 
by keeping the old family estates as much as pos- 



330 NOTES. 

sible unbroken. And it is open to every traveller in the 
United States to observe how completely the rapidly-accu- 
mulating wealth, arising from the vast resources of that 
country, gives to the social life of the actual possessors of 
wealth, all, or nearly all, the characteristics that it could 
have in that country under the most rigid custom of pri- 
mogeniture. 

M. De Tocqueville speaks with evident regret of the 
consequences of the law or custom of subdivision of inhe- 
ritances, in destroying family attachments to places and 
people ; in removing " an imperishable witness of the past 
and a precious pledge for the future;" in extinguishing 
one great stimulus to perpetuate virtue and renown ; in 
dissipating the laboriously-collected stores of cultivation 
and refinement, and obstructing the onward progress of 
the highest civilisation, by continually compelling steps 
that had been already gained to be retraced anew. 

He attributes to it, also, a deeper moral taint, and a 
greater wrong to the highest interests of mankind. He 
says, and says truly, that when you have destroyed in the 
minds of the wealthy and prosperous all those more ele- 
vating influences which can so powerfully affect the human 
heart, you leave it to be absorbed by selfishness, or to 
limit its sympathies within the narrow field of one genera- 
tion. And when you have removed all the higher objects 
of love and reverence, and all the purer incentives to exer- 
tion, you leave little more than the basest of all incentives, 
the love of money. 

Strong is the language of Goldsmith in denouncing 
those who, 

" polluting honour at its source, 
Give wealth to sway the mind with double force." 

In this country we hold the united benefits derived from 



NOTES. 331 

all the inheritances of antiquity and all the material, intel- 
lectual, and moral conquests of modern times, by the tenure 
of making them all subservient (as far as human wisdom 
permits) to the highest interests and the individual happi- 
ness of the whole body of the community. 



Note X. 

I have said in the text (pp. 23, 86) that there is no need 
to repeat the well-known refutations of those theories 
which rest the claim to a participation in political power 
on " the rights of man." The full discussion which these 
abstract questions of government underwent at the end of 
the last century has finally disposed of them as matters of 
practical value, in the convictions of all educated men in 
this country. But no one can be conversant with the sort 
of literature which for the last twenty years has been ad- 
dressed to the passions, and which takes advantage of the 
comparative want of knowledge of large masses of our 
population, without seeing in it another example of the 
facility with which exploded errors can be revived among a 
new generation unacquainted with their previous existence. 
I therefore offer this circumstance as the excuse for the 
length of the following extracts. It is not every one who 
may chance to read this volume who has at hand the 
writings of those who dealt, with these questions when, in 
the last century, they agitated the whole of Europe. And 
I venture to hope that no one will object to see, in con- 
nection with the subject of this book, a few of those pas- 
sages which were bequeathed to the admiration of posterity 



332 NOTES. 

by orators and statesmen who have placed the foundations 
of our own political system on the basis of true philosophy 
and irrefragable reasoning. 

The following is the eloquent exposition of Burke, of the 
real rights of man, in contradistinction to his pretended 
rights, as a member of civil society : — 

" The pretended rights of these theorists are all ex- 
tremes ; and in proportion as they are metaphysically true 
they are morally aud politically false. The rights of men 
are a sort of middle, incapable of definition, but not impos- 
sible to be discerned. The rights of men in governments 
are their advantages ; and these are often in balances 
between differences of good ; in compromises sometimes 
between good and evil, and sometimes between evil and 
evil. Political reason is a computing principle ; adding 
subtracting, multiplying, dividing, morally, and not meta- 
physically or mathematically, true moral denominations. 

" By these theorists the right of the people is almost 
always sophistically confounded with their power. The 
body of the community, whenever it can come to act, can 
meet with no effectual resistance ; but until power and right 
are the same, the whole body of them has no right incon- 
sistent with virtue, and the first of all virtues, prudence. 
Men have no right to what is not reasonable, and to what 
is not for their benefit. 

" Whilst they are possessed by these notions it is vain 
to talk to them of the practice of their ancestors, the 
fundamental laws of their country, the fixed form of a 
Constitution whose merits are confirmed by the solid test 
of long experience and an increasing public strength and 

national prosperity. They despise experience 

They have the ' rights of man.' Against these, they say, 
there can be no prescription ; against these no argument 



notes. 333 

is binding ; these admit no temperament and no compro- 
mise ; anything withheld from their full demands is so 
much fraud and injustice. Against these, their rights of 
men, let no Government look for security in the length of 
its continuance, or in the justice and lenity of its adminis- 
tration. The objections of these speculatists, if its forms 
do not quadrate with their theories, are as valid against 
an old and beneficent Government as against the most 
violent tyranny or the greatest usurpation. They are 
always at issue with Governments, not on a question of 
abuse, but a question of competency and a question 

of title 

" Far am I from denying in theory — full as far is my 
heart from withholding in practice (if I were of power to 
give or to withhold) — the real rights of men. In denying 
their false claims of right, I do not mean to injure those 
that are real, and are such as their pretended rights would 
totally destroy. If civil society be made for the advantage 
of man, all the advantages for which it is made become 
his right. It is an institution of beneficence, and law 
itself ie only beneficence acting by rule. Men have a right 
to live by that rule ; they have a right to do justice, as 
between their fellows, whether their fellows are in politic 
function or ordinary occupation. They have a right to the 
fruits of their industry, and to the means of making their 
industry fruitful. They have a right to the acquisitions of 
their parents; to the nourishment and improvement of 
their offspring ; to instruction in life, and consolation in 
death. Whatever each man can separately do, without 
trespassing on others, he has a right to do for himself ; 
and he has a right to a fair portion of all which society, 
with all its combinations of skill and force, can do in his 
favour. In this partnership all men have equal rights, 



334 NOTES. 

but not to equal things. He that has but five shillings in 
the partnership, has as good a right to it as he that has 
five hundred pounds has to his larger proportion. But he 
has not a right to an equal dividend in the produce of the 
joint stock ; and as to the share of power, authority, and 
direction which each individual ought to have in the 
management of the State, that I must deny to be amongst 
the direct original rights of man in civil society ; for I 
have in contemplation the civil man, and no other. It is a 
thing to be settled by convention. 

" If civil society be the offspring of convention, that 
convention must be its law. That convention must limit 
and modify all the descriptions of constitution that are 
formed under it. Every sort of legislative, judicial, or 
executory power are its creatures. They can have no 
being in any other state of things ; and how can any man 
claim, under the conventions of civil society, rights which 
do not as much as suppose .its existence — rights which are 
absolutely repugnant to it ? One of the first motives to 
civil society, and which becomes one of its fundamental 
rules, is, that no man should be judge in his own cause. 
By this each person has at once divested himself of the 
first fundamental right of uncovenanted man, that is, to 
judge for himself and to assert his own cause. He abdi- 
cates all right to be his own governor. He inclusively, in 
a great measure, abandons the right of self-defence, the 
first law of nature. Men cannot enjoy the rights of an 
uncivil and of a civil state together. That he may obtain 
justice, he gives up his right of determining what it is in 
points the most essential to him. That he may secure 
some liberty, he makes a surrender in trust of the whole 
of it. 

" Government is not made in virtue of natural rights, 



NOTES. 335 

which may and do exist in independence of it, and exist in 
much greater clearness, and in a much greater degree of 
abstract perfection ; but this abstract perfection is their 
practical defect. By having a right to everything, they 
want everything. Government is a contrivance of human 
wisdom to provide for human wants. Men have a right 
that these wants should be provided for by this wisdom. 
Among these wants is to be reckoned the want, out of 
civil society, of a sufficient restraint upon their passions. 
Society requires not only that the passions of individuals 
should be subjected, but that even in the mass and body, 
as well as in the individuals, the inclinations of men 
should frequently be thwarted, their will controlled, and 
their passions brought into subjection. This can only be 
done by a poiver out of themselves, and not, in the exercise 
of its function, subject to that will and to those passions 
which it is its office to bridle and subdue. In this sense 
the restraints on men, as well as their liberties, are to be 
reckoned among their rights. But as the liberties and 
the restrictions vary with times and circumstances, and 
admit of infinite modifications, they cannot be settled upon 
any abstract rule; and nothing is so foolish as to discuss 
them upon that principle. 

" The moment you abate anything from the full rights 
of men, each to govern himself, and suffer any artificial 
positive limitation upon those rights, from that moment 
the whole organisation of government becomes a matter of 
convenience. This it is which makes the Constitution of 
a State, and the due distribution of its powers, a matter 
of the most delicate and complicated skill. It requires a 
deep knowledge of human nature and human necessities, 
and of the things which facilitate or obstruct the various 
ends which are to be pursued by the mechanism of civil 
institutions. . . 



336 NOTES. 

"Nor is it a short experience that can instruct us in 
that practical science ; because the real effects of moral 
causes are not always immediate, but that which, in the 
first instance, is prejudicial, may be excellent in its re- 
moter operation, and its excellence may arise even from 
the ill effects it produces in the beginning. The reverse 
also happens ; and very plausible schemes, with very 
pleasing commencements, have often shameful and lament- 
able conclusions. In States there are often some obscure 
and often latent causes, things that appear at first view of 
little moment, on which a very great part of its prosperity 
or adversity may most essentially depend."* 

Sir James Mackintosh, in the maturity of his great 
powers, gave his full adherence to the principles established 
in this profound and comprehensive exposition of the foun- 
dation of political government. Speaking of those abstract 
rights above adverted to, he says, that " such remote prin- 
ciples shed too faint a light to guide us on our path, and 
can seldom be directly applied with any advantage in 
human affairs." He proceeds to describe representation 
as originating only in usage, that usage giving birth to 
maxims which guide our judgment in each particular case, 
and which grow with the experience of their fitness and 
value. " These," he affirms, " constitute the principles of 
the British Constitution, as distinguished, on the one hand, 
from abstract notions of government, and, on the other, 
from the provisions of law or the course of practice. ' Civil 
knowledge,' says Bacon, ' is of all other the most immersed 
in matter, and the hardliest reduced to axioms ; ' and in 
political, as well as all other knowledge, ' the middle prin- 
ciples alone are solid, orderly, and fruitful.' "f 

* Reflections on the Eevolution in France. Burke's Works, 
Edit, of 1852, (Rivington,) pp. 198, 201. 
t Sir James Mackintosh's Works, vol. iii. p. 574, Edit, of 1846. 



notes. 337 



Note XI. (See pages 99 and 273.) 

Much more might be said beyond -what I have thought 
it necessary to introduce in the pages above referred to, on 
the subject of the representation in the Slave States, the 
franchise of the free coloured people in the northern States, 
and the small amount of the actual participation of the 
latter in the political rights and privileges of their 
fellow-citizens. I, however, designedly abstain from the 
subject of slavery altogether. I greatly respect the 
motives of those persons, many of them of high position 
and great influence in this country, who think, and are 
supported in that opinion by many persons in the United 
States, that the continual expression of the opinion 
of this country and of Europe generally on the question 
of slavery, aids what is called the Abolition Party, and 
therefore hastens the time when slavery will be no more. 
I have the strongest conviction* founded on what I know 
to be the opinions of many of the best, the ablest, the 
most far-seeing, and most benevolent persons in the 
United States, — founded, also, on the facts of the history of 
this question, and on what is passing at the present time, 
— that this is an error. 

It is impossible that any amount of reasoning, any 
amount of vituperation, can add a feather's weight to the 
already almost overwhelming sense of difficulty and danger 
which presses upon the thoughts of every individual states- 
man or man of intellect and cultivation in the United 
States, be he slave-holder or not, when he gives his mind 
to a calm survey of what is impending over his country in 



338 NOTES. 

relation to that momentous question. Less than thirty 
years hence there will probably be nearly 6,000,000 slaves 
to be dealt with instead of 3,900,000,* with all the added 
difficulties arising from increased intelligence and means 
of combination, which it will be impossible to shut out. 
The general vituperation launched at the system passes 
by the heads of those who will tell you that they live 
among their slaves as a father among his children ; that 
they trust unhesitatingly to their care their property, 
their persons, and those of their wives, their grown-up 
daughters, and their infants ; and it is laughed at by the 
hardened reprobates who profit by the worse features of 
the system, and its occasional dreadful incidents. Har- 
rowing descriptions, lofty denunciations, elaborate argu- 
ments, are not needed by the one, and are scoffed at by 
the other. But they are something more, and something 
worse, than not needed. 

Of the many agreeable sensations, and unexpected 
and most gratifying convictions with which I was impressed 
during my visit to the United States in 1851, one of the 
most unexpected and most gratifying was that of finding 
how deep, how sincere, and how general was the natural 
feeling of kindliness, of respect, and affection, of all per- 
sons of any amount of culture and information, towards 
the parent country. The hostile and irritating criticisms 
of the press on both sides the water ; the social and poli- 
tical theories, so opposed to ours, under which they live ; 
the remembrance of all they had suffered from our im- 
policy, our arrogance, and our injustice, in the last cen- 

* The present rate of increase of the slave population, accord- 
ing to the census of 1850, is 28'05 per cent in ten years. In 
the previous ten years, from 1830 to 1840, the rate of increase 
was only 23-8 per cent. 



notes. 339 

tury, and our unhappy collisions in the early part of 
this, have not been able to sever the ties of those natu- 
ral affections which bind them to their birthplace, and 
to the sources of all they deem most precious in their 
inheritance from the past. Towards everything which, 
in this country, we are accustomed to regard with re- 
spect, I found all such persons in that country disposed 
to look with an equal respect, and as ready to derive 
from them the improving influences which we believe 
them capable of diffusing through the great body of society. 
Approached, therefore, in the spirit of mutual respect, of 
brotherly kindness, of friendly openness and frankness, 
there is no subject on which an American of any cultiva- 
tion is not most ready to enter, with a disposition to look 
at and consider it from the point of view in which it is 
regarded in England. His sympathies are already with 
us ; we have but to acknowledge and to respond to them. 
The violent and unscrupulous portion of the press in his 
country (the worst being conducted or inspired by rene- 
gades from ours,) may, and doubtless does, produce a very 
different state of feeling and opinion in the numerical 
mass; but the expanded hearts and minds of the educated, 
the reflecting, the cultivated, in their various degrees, are 
untrammelled by any such unworthy influences, and meet 
us fully half-way in any demonstrations of genuine 
respect and fraternal recognition. But in equal measure 
do their spirits revolt against assumption. And all the 
more keenly, in proportion to their desire to be understood 
aright, do they feel the unkind criticism, the over-coloured 
description, or the repelling sneer. 

The effects of these latter upon the less cultivated are 
to stimulate to undue assumption on their part, and to 
produce that exaggerated degree of self-assertion, from the 

Q 2 



340 NOTES. 

fear of being undervalued, which is the subject of remark 
in Europe. 

The number of persons kindly affected towards us in the 
United States is, I am persuaded, very considerable, and 
embraces a very large proportion of all that is most culti- 
vated and most estimable in that country. And upon them, 
I have not the shadow of a doubt — and my convictions are 
founded upon correspondence, upon personal intercourse, 
and upon what I have heard from the best sources — that 
the proceedings of the last two years in England, relative 
to the slavery question, have produced the most unfortunate 
and most undesirable impression, and have, as far as they 
have been operative at all, retarded, instead of advancing, 
the time when it will be possible to reopen that question in 
the Slave States with a view to its solution. 

It is unfortunate that persons in this country, whom 
there is every disposition to respect, should throw away 
their natural influence with the better-disposed classes in 
the United States, by what is looked upon by so many 
among them as an unwarrantable assumption. On wider 
grounds it is still more to be lamented, in its effect in 
keeping up and increasing that coldness and alienation, 
and that exaggerated self-assertion, above adverted to as 
common among the less cultivated of their population. 
Both these effects are bad enough in a social point of view, 
but may be still worse in their national consequences, 
as predisposing to national irritations, and making them 
more difficult to be allayed. But beyond and above these 
incidents to that course of proceeding lies a reason against 
such interferences, especially from this country, which is 
very generally overlooked, but which is of much weight in 
the estimation of those most nearly concerned— it is, that 
each of the individual States is, and never allows it to be 



NOTES. 341 

forgotten that she is, a sovereign State, and as such is ever 
jealously on the watch against any interference or dictation 
from without in any shape. No amount of agitation in the 
rest of the United States, or in any part of the world what- 
soever, against anything that concerns her internal policy, 
can have any effect in compelling her against her will to 
alter that policy; and the greater the agitation directed 
against her, the more obstinately will she resist all move- 
ment until she can exercise her own discretion in taking 
the initiative with calmness and in her own way. To 
adopt a less sturdy course would, they think, he to re- 
nounce their Saxon descent and character ; some will add 
perhaps even more than that, for, judging from those I 
met with, there is scarcely one of the sons of the old 
southern States who hesitates to tell you that they have 
not got some of the best blood of England in them for 
nothing. They will remind you that the movement in 
New York and Pennsylvania, which ended in abolishing 
slavery in those States, in 1819, began within themselves, 
as had been the case before in New Hampshire, Massachu- 
setts, Vermont, and Ohio. They will point to Virginia and 
Kentucky, where, years ago, measures for continuing or 
granting facilities for emancipation were all but carried ; 
and to Maryland, where, as well as in Virginia and Ken- 
tucky, it is notorious that the value of the land would be 
trebled were the slaves which taint their soil, and repel 
the labour and capital of the north, gradually set free by 
Acts of their Legislatures. They will remind you, that 
those movements, which were so nearly being successful 
in the two States above-named, were spontaneous, and 
emauated from themselves ; and that they were checked 
in mid career, and further progress made for a time 



342 NOTES. 

impossible, by the irritation of feeling produced by 
the attacks, the taunts, and the interference of the Aboli- 
tionists. But much as they resent the interference of 
their fellow-countrymen, still more do they resent ours, 
when obtruded upon them in a spirit of superiority, and 
as if we had a right to take them to task. 

There is a spirit, however, in which they will thank you 
if you will enter upon this great question with them. Sit 
down with them, and count the cost. Look at the appall- 
ing subject in all its vast and complicated bearings. Feel 
for them, as you cannot fail to do, at the hideous problem 
that lies before them. Feel with them at their stupendous 
difficulties. Aid them with the whole stretch of your 
mind and the whole force of your ability, as you would a 
brother. Point out every " lane of open water " that may 
seem to lead through that worse than polar agglomera- 
tion. Consider with them what expedients may smooth 
the way for, what palliatives may mitigate, the crisis. 
Suggest the little that may have been good in the expe- 
rience of your own country, and recall to mind the 
wiser counsels that were neglected and the hopeful oppor- 
tunities that were lost. Be humble in your anticipations 
of being a useful counsellor, in the recollection of your 
own errors. Believe that those on whom the heavy w T eight 
of the solution must press day and night must know some- 
thing about it, and of the times and seasons when to take 
it in hand. Soften down the asperities you may before 
have had a hand in causing; help to bury them in oblivion; 
encourage the opening of a new page, and the commence- 
ment of action from a new starting-point. Let it hence- 
forward be a question not of general reasoning and decla- 
mation, but of practical detail. Bend all the energies of 



notes. 343 

your mind upon that ; and implore an All -wise Providence 
to look with compassion upon the past, and to bless the 
efforts for a better future.* 

* The first disturbances, produced by the measures of the Abo- 
litionists, took place in New York, in 1834. In 1835, lawless pro- 
ceedings against persons belonging, or supposed to belong, to that 
party, occurred in Baltimore, New Orleans, and in the States of 
Mississippi and Missouri. In 1S37, President Yan Buren, the 
first who in his public addresses adverted to the question of 
slavery, expressed his determination " to resist the slightest inter- 
ference with it in the States where it exists." The continued agi- 
tation of the subject, and the efforts of the Abolitionists to facilitate 
the escape of slaves, produced, in 1850, the Fugitive Slave Law, 
which has given tenfold bitterness to the feelings of the north, 
and roused the south to declare that its repeal will be followed by 
a dissolution of the Union. How is it possible, until these feelings 
are quieted on both sides, that any real and vigorous efforts can 
be made even in those slave States which once manifested a 
desire to lead the way in the further progress of abolition ? 

In two at least of them the current has now completely turned. 
Kentucky, in 1850, by a vote of 71,563 for, and 20,302 against ; 
Maryland, in 1851, and Yirginia in 1851, by a vote of 75,748 for, 
and 11,060 against, adopted ultra-democratic constitutions (every 
free white male of 21 years of age, resident from six months to 
two years, having a vote) ; yet, in the two last, the General Assem- 
bly is altogether restricted from emancipating. In Kentucky, the 
consent of the owner is required, or the payment of a full equi- 
valent, and the removal of those emancipated from the State, the 
latter provision adding greatly to the cost and difficulties. I take 
the above figures from "The American Almanack" (Boston), a 
very useful compilation, to which I am much indebted. 



344 NOTES. 



Note XII. 



The expression in the text (p. 298), that the Con- 
stitution of the United States is commonly asserted 
in that country to be, in popular phrase, " the best in 
the world," is too well supported by every-day facts to 
need any justification; but, perhaps, a few instances, 
showing that the expression has been countenanced by 
high authorities, may not be without their value. 

President Munroe, in his "Message" of 18*26, speaks 
of the institutions of the United States as "the happiest 
the world ever knew." 

President Harrison, in his Address of 1841, describes 
their institutions as " far exceeding in excellence those of 
any other people." 

President Filmore, in his "Message" of 1852, asserts 
that their Constitution, "though not perfect, is, doubtless, 
the best that was ever formed." 

A very useful little volume on " The Constitution of the 
United States," with a " descriptive account of the State 
Papers and other Public Documents" relating to it. by 
Mr. W. Hickey,* has now reached its fourth edition. 
Prefixed to it are copies of several resolutions of the 
Senate, ordering the purchase and distribution of upwards 
of 24,000 copies of this work. In the " Introductory 
Remarks," p. xxxiv, Mr. Hickey, speaking of the President 
and the members of the two Houses of Congress, uses the 
following words : — 

" The intrinsic dignity of whose official character, in a 

* Philadelphia, 1851. 



notes. 345 

moral point of view, transcends that of every other legis- 
lative assembly, in so much as our Constitution excels that 
of every other human government." 

I am far from referring to it as a matter of complaint 
that the citizens of the United States should think and 
speak of their Constitution as " the best in the world." I 
only wish to guard myself against being thought in the 
least degree to have exceeded the strict truth, in alleging 
that such is their claim, not to say, boast ; and that they 
therefore challenge all legitimate criticism, and every fair 
exposition of facts which show how far their present prac- 
tice and experience under that Constitution corresponds 
with its letter and spirit. 

Very different was the language of Washington in speak- 
ing of that document, when, in a letter to the President of 
the Congress,* he recommended its acceptance. 

His words are, " t?hat it is liable to as few exceptions as 
could reasonably have been expected, we hope and be- 
lieve." 

To the same effect, also, are his sentiments in the ex- 
tract given last in this note. 

The wisdom of the truly great men who framed the 
Constitution was too enlarged not to include the attribute 
of humility, under the consciousness of human imperfec- 
tions ; and their knowledge was too comprehensive and 
real, not to show them difficulties and dangers on the vast 
field of political science, which lie beyond the horizon of 
inferior minds. Therefore — in the same sober spirit as 
his great predecessor — the second President of the Re- 
public, John Adams, in his inaugural address,! speaks of 
the Constitution " as an experiment ;" " better adapted," 

* September 17, 1787. + March 4, 1797. 

Q 3 



346 notes. 

indeed, " to the genius, character, situation, and relations 
of this nation and country, than any which had ever been 
proposed or suggested," but not therefore the best in the 
world, and for every one in it. And in a similar tone are 
the inaugural addresses of the two next Presidents, 
Jefferson and Madison, who were the contemporaries of 
the great struggle, and were content to indulge large hopes 
from the form of government that resulted from it, with- 
out therefore pronouncing their own work the most perfect 
or the only perfect effort of political wisdom. 

There is, perhaps, no State paper ever written, more re- 
markable, more touching, more eloquent, more full of 
pregnant thoughts and wise counsels, than " The Farewell 
Address of George Washington, President, to the People 
of the United States, September 17th, 1796," on his re- 
tiring into private life after his second presidentship. I 
venture to extract a few passages, not; only on account of 
their intrinsic excellence as specimens of true political 
philosophy, but as directly applicable to many of the sub- 
jects discussed in the text, on the changes that have 
ensued, since those days, in the practical working of the 
Constitution : — 

" Towards the preservation of your Government, and 
the permanency of your present happy state, it is requi- 
site, not only that you steadily discountenance irregular 
oppositions to its acknowledged authority, but also that you 
resist with care the spirit of innovation upon its principles, 
however specious the pretexts. One method of assault 
may be, to effect, in the forms of the Constitution, altera- 
tions which will impair the energy of the system, and thus 
to undermine what cannot be directly overthrown. In all 
the changes to which you may be invited, remember that 
time and habit are at least as necessarv to fix the true 



NOTES. 347 

character of governments, as of other human institutions ; 
that experience is the surest standard by which to test the 
real tendency of the existing constitution of a country; 
that facility in changes, upon the credit of mere hypothesis 
and opinion, exposes to perpetual change, from the endless 
variety of hypothesis and opinion; and remember, espe- 
cially, that for the efficient management of your common 
interests, in a country so extensive as ours, a government 
of as much vigour as is consistent with the perfect security 
of liberty, is indispensable. Liberty itself will find in such 
a government, with powers properly distributed and ad- 
justed, its surest guardian. It is, indeed, little else than a 
name, where the government is too feeble to withstand the 
enterprises of faction, to confine each member of the so- 
ciety within the limits prescribed by the laws, and to 
maintain all in the secure and tranquil enjoyment of the 
rights of person and property." 

" The spirit of encroachment tends to consolidate the 
powers of all the departments in one, and thus to create, 
whatever the form of government, a real despotism. A 
just estimate of that love of power, and proneness to abuse 
it, satisfy us of the truth of this position. The necessity 
of reciprocal checks in the exercise of political power, by 
dividing and distributing it into different depositories, and 
constituting each the guardian of the public weal, against 
innovations by the others, has been evinced by experi- 
ments, ancient and modern ; some of them in our own 
country, and under our own eyes. To preserve them must 
be as necessary as to institute them. . . . Let there 
be no change by usurpation ; for though this, in one in- 
stance, may be the instrument of good, it is the customary 
weapon by which free governments are destroyed. The 



348 notes. 

precedent must always greatly overbalance, in permanent 
evil, any partial or transient benefit -which the use can at 
any time yield." . . . 

" Observe good faith and justice towards all nations, 
cultivate peace and harmony with all ; religion and mora- 
lity enjoin this conduct, and can it be that good policy 
does not equally enjoin it ? It will be worthy of a free, 
enlightened, and, at no distant period, a great nation, to 
give to mankind the magnanimous and too novel example 
of a people always guided by an exalted justice and bene- 
volence. Who can doubt that, in the course of time and 
things, the fruits of such a plan would richly repay any 
temporary advantages which might be lost by a steady ad- 
herence to it ? Can it be that Providence has not con- 
nected the permanent felicity of a nation with its virtue? 
The experiment, at least, is recommended by every senti- 
ment which ennobles human nature. Alas ! is it rendered 
impossible by its vices ? " 

" The great rule of conduct for us, in regard to foreign 
nations, is, in extending our commercial relations, to have 
with them as little political connection as possible." 

" Europe has a set of primary interests, which to us 
have none or a very remote relation. Hence she must be 
engaged in frequent controversies, the causes of which are 
essentially foreign to our concerns. Hence, therefore, it 
must be unwise in us to implicate ourselves by artificial 
ties, in the ordinary combinations and collisions of her 
friendships or enmities."* 



* Washington urges this advice in several other paragraphs, 
terminating in a recommendation to his countrymen to keep them- 



notes. 349 

" In offering to you, my countrymen, these counsels of 
an old and affectionate friend, I dare not hope they will 
make the strong and lasting impression I could wish ; that 
they will control the usual current of the passions, or pre- 
vent our nation from running the course which has hitherto 
marked the destiny of nations ; hut if I may ever flatter 
myself that they may be productive of some partial benefit, 
some occasional good ; that they may now and then recur 
to moderate the fury of party spirit, to warn against the 
mischiefs of foreign intrigues, to guard against the impos- 
tures of pretended patriotism ; this hope will be a full re- 
compense for the solicitude for your welfare by which they 
have been dictated." 



Note XIII. 

In Washington's Farewell Address above quoted, occurs 
the following passage on the value of religious princi- 
ples : — 

" Of all the dispositions and habits which lead to politi- 
cal prosperity, religion and morality are indispensable sup- 
ports. In vain would that man claim the tribute of pa- 
triotism, who should labour to subvert those great pillars 
of human happiness, those foremost props of the duties of 

selves, by suitable establishments, on a respectable defensive pos- 
ture. " Upon the danger to liberty," and particularly to " repub- 
lican liberty," from large military establishments, which necessarily 
follow a state of hostilities at home or abroad, he had dilated in a 
previous page. 



350 NOTES. 

men and citizens. The mere politician, equally with the 
pious man, ought to respect and to cherish them. A 
volume could not trace all their connections with private 
and public felicity. Let it simply be asked, where is the 
security for property, for life, if the sense of religious ob- 
ligation desert the oaths which are the instruments of 
investigation in courts of justice ? And let us with caution 
indulge the supposition^that morality can be maintained 
without religion. Whatever may be conceded to the in- 
fluence of refined education on minds of peculiar structure, 
reason and experience both forbid us to expect that na- 
tional morality can prevail in exclusion of religious prin- 
ciples." 

On the great experiment that is now in progress in the 
United States on that momentous question, I have ven- 
tured to touch in a previous volume.* 

The adoption of any one form of religion by the State 
being impossible in that country, it has been thought 
equally impossible by some, it has been deemed unde- 
sirable by others, that any religious instruction involving 
points of doctrine should be taught in the schools esta- 
blished by the laws and supported by the funds of the 
community. It is assumed, that the doctrines of religion 
will be taught at Sunday schools, by the paid ministers of 
each religious denomination, aided by voluntary teachers, 
attending at the Sunday schools for that purpose. 

As this question has become one which must be 
thoroughly and deeply considered in this country, I 
availed myself of such opportunities as I could command 
during a short tour in the United States in 1851, to in- 
quire into its practical working in the public schools there. 

* Notes on Public Subjects, &c. 



NOTES. 351 

For that purpose, I visited various public schools in New 
York, in Philadelphia, in country villages in the interior 
of Pennsylvania, in Pittsburgh on the Ohio, in Cincinnati, 
in Cleveland on Lake Erie, in the State of Rhode 
Island, and finally, in Boston. In every instance, I was 
aided in my inquiries either by the superintendents of 
public instruction, or by the masters of the schools, and in 
some instances by both together. The facts were gathered 
from the state of the schools exactly as I found them, 
without preparation, and without their being previously 
aware either of my visit, or of the nature of the facts which 
I wished fairly to ascertain. The result was as I have 
stated it in the volume above referred to, namely, that of 
the pupils attending the day-schools, in some cases a large, 
in others a small, but generally a very considerable pro- 
portion, " either did not attend any Sunday school, or did 
so only very irregularly." 

The only hostile criticism upon those statements, which 
has come under my notice, has been directed against the 
information given me respecting the Sunday schools at 
Lowell, by the Rev. Dr. Edson, for twenty-seven years 
past the rector of a church at Lowell, and a gentleman 
held in the highest estimation by all his neighbours. Dr. 
Edson, after giving me his reasons for having arrived at 
the conviction that the public-school system had "already 
undermined" among their population, " to a great extent," 
the doctrines and principles of Christianity, stated to me 
his belief " that less than half of the whole number of 
children (at Lowell) between the ages of five and sixteen 
attend any Sunday-school, or do so only most irregularly." 

This statement of Dr. Edson's excited great attention 
at Boston and in the State of Massachusetts generally, 
and was subjected to violent attacks in some of the public 
papers. An inquiry was very soon instituted by the 



352 notes. 

Board of Education, throughout the State, and the result 
■was, I am informed, that the children at the day-schools 
who did not attend at some Sunday school were found, at 
that time, to constitute a very small per-centage of the 
whole. Without entertaining the slightest particle of sus- 
picion that such a result was unfairly obtained, I confess 
its purport does not in the least surprise me, considering 
how probable it is that many parents would have been awak- 
ened to the propriety of sending their children to Sunday 
school by the discussion that had arisen. 

I beg, however, again to call attention in this country to 
some additional evidence since furnished to me by Dr. Ed- 
son, which, as it rests upon public documents, will scarcely 
admit of dispute. 

These documents are : — 1. " The Annual Report of the 
School Committee of the City of Lowell, for 1852, with a 
Summary of Returns;" 2. "The Annual Report of the 
Lowell Sabbath School Union." Of this latter document 
Dr. Edson says : — " This Union is a voluntary association 
for the benefit of Sunday school instruction, and compre- 
hends fifteen out of twenty-four Sunday schools in the city. 
The schools not associated are — the Roman Catholics, who 
have three schools ; the Unitarians, two; the Universalists, 
two ; and two not connected with any particular form of 
religion, and claiming not to teach any particular religion. 
I have not the numbers connected with the nine schools 
not associated, but I have reckoned them, by a large esti- 
mate, at the average number attending the associated 
schools." 

Dr. Edson then subjoins the following Table, completed 
by estimates on the above-named basis. It will be seen 
that it bears out in a remarkable manner, and almost 
to the letter, the statement which he made to me as the 
result of observation only, namely, that less than half of 



NOTES. 353 

the whole number of children between five and sixteen (in 

Lowell) attend the Sunday schools. 

" According to the summary appended to the Annual 

Report of the Lowell School Committee, the total number 

of pupils in the time-books from January, 1851, to January, 

1852, was 9012 

Subtract ' sent to other public schools of 
same rank,' because these names are 
repeated in the time-book . . . 636 

Subtract also ' sent from primary to gram- 
mar schools,' for the same reason . 629 

Subtract ' sent from grammar-schools to 
the high school' . . . .129 



1394 

Total number of pupils attending the day- 

schools for the year 1852 . . . 7618 
" According to the report of the Sabbath School Union 
for 1852, in the statistical column ' under fifteen years of 
age,' and filling the blanks with estimates derived from 
the average of schools reported of the same persuasion, the 
total number of children under fifteen in those schools for 
the year 1852 .... 1947 + 348 = 2295 
Add for schools not associated — namely, Ro- 
man Catholics, 3 ; Unitarians, 2 ; Uni- 
versalists, 2 ; of no particular religion, 2 ; 
9 schools — estimated number of pupils 
therein, under 15, according to the ave- 
rage of schools reported 1377 

Add for such pupils above 15 in the public 
schools as may be in Sunday schools 
(estimated) 204 

Total number of pupils attending the Sun- 
day schools, according to statistics and 
estimate 3876" 



354 NOTES. 

Dr. Edson's statement to me, founded on general ob- 
servation, was, " that less than half of the whole number 
of children (at Lowell) between the ages of five and sixteen 
attend any Sunday school, or do so only most irregularly." 

Multiplying the above number of 3876 by two, will give 
7752. 

The number 3876, therefore, exceeds the half of the 
number 7618 by 134 only (7752—7618 = 134) ; and Dr. 
Edson's statement to me, with regard to the attendance at 
Sunday schools being less than half of that at the day- 
schools, is proved to be almost literally correct, by the pub- 
lished statistics of the day and Sunday schools of Lowell, 
completed by fair and liberal estimates. 

" It will be seen," Dr. Edson adds, " by perusal of the 
Report of the Sabbath School Union, that the tendency of 
each particular school is to report itself large. It is but the 
natural result of a laudable emulation of the schools be- 
tween themselves to report as many as circumstances will 
justify, and of course to include those pupils whose at- 
tendance is but very irregular and of inconsiderable 
amount. 

" It may be remarked also that there are included in 
the 3876, pupils privately educated, or otherwise not be- 
longing to the public schools. If these were added to the 
7618, it would somewhat affect the ratio of the two num- 
bers," in the way of further confirmation of Dr. Edson's 
calculations. 

When it is remembered how much it is the custom 
among the upper and middle classes in the United States 
to send their children to the Sunday schools, and to attend 
themselves as teachers, it is perfectly safe to infer that the 
great majority of those who neglect to send their children, 
belong there, as in this country, to the least educated por- 
tions of society. 



NOTES. 355 

By these latter, secular education is, in England, coming 
more and more to be regarded almost in the category 
of material wants, since it is found to be one of the best 
instruments towards supplying them. Such persons will 
send their children to the day-school to obtain the small 
amount of common learning which they think necessary, 
and withdraw them at the earliest possible age at which 
this can be attained. And the better the school, generally 
speaking, the earlier the age at which the majority of such 
children leave it. After that period, neither schoolmaster, 
nor clergyman, nor dissenting minister, can feel the least 
certainty that he will ever see anything more of them again 
as far as education is concerned, secular or spiritual. If 
the few early years of secular instruction are not seized 
upon, to impart at the same time all the elementary prin- 
ciples of Christian doctrine, and to make the first impres- 
sions in favour of a firm Christian belief, where is the pro- 
bability that the great majority of those who most need 
such early training and direction will ever obtain it ? Even 
if the whole were gathered into Sunday schools, which is 
beyond all expectation, who is to teach them ? The clergy 
are already overburdened, and greatly too few to meet the 
present demands upon them. The voluntary teachers, 
whatever may be their zeal, cannot be expected, ex- 
cept in comparatively rare instances, to possess that com- 
mand of elementary knowledge and that tact in using it, 
which are indispensable, if teaching is to be impressive and 
successful. And if these elementary principles of a firm 
Christian belief are not fixed early in the mind, according 
as they are understood by the church or sect to which the 
child belongs, the progress is direct and rapid, first to in- 
difference to any, and then to the rejection of all. That 
this process is going on in the United States, as the direct 



356 NOTES. 

result of their public-school system, is the opinion of many 
portions of the principal religious bodies — in particular the 
Eoman Catholics, the Church of England, and the old 
Presbyterians or Puritans — irrespective of mere party 
views; although at the same time the belief is common that 
no other system of general education in that country is 
possible. It is an experiment from which, touching as it 
does the foundation of " those great pillars of human hap- 
piness, religion and morality," to use the words of Wash- 
ington, we should do well to abstain. * 

* In some remarks on my book, " Notes on Public Subjects." 
&c, in the "Westminster Review" for April, 1853, it is imputed 
to me that the information which I gave upon this subject in that 
volume was collected " under the influence of the ultras of the 
high-church party and my own bias." I beg, in the first place 
utterly to disclaim any bias towards the high-church party ; and in 
the next, I assert that my information was collected indiscrimi- 
nately from a great variety of persons, and without the least attempt 
at inquiry as to, or any knowledge of, the tenets of those who gave 
it or assisted me in procuring it. 

It is further said, " that Mr. Tremenheere has been very careless, 
to say the least of it, in adducing authorities. Thus in enumerat- 
ing his adverse testimonies, he represents the Bishop of Massachu- 
setts as saying, that he would prefer, in the interests of religion, a 
mixture of religious with secular teaching, but that this is not 
attainable. But we are assured by the Bishop that he was misre- 
ported. Being asked whether he would not prefer having the 
schools more under his control, he said ' Yes,' but added, ' that 
this was impossible, and that he was quite satisfied with the working 
of the present system,' of which satisfaction we are not favoured with 
a hint." — Westminster Review, April, 1853, p. 515. 

In confirmation of the correctness of my own statement, and in 
opposition to that of the writer of the review, I appeal to the 
answer given by the Bishop to Mr. Twisleton, printed in the Ap- 
pendix to the Eeport of the Select Committee on Manchester and 
Salford Education (1852), p. 492; which answer, verified by the 
Bishop's signature, together with the question, was as follows :— 



notes. 357 



Note XIV. 

It would be easy to quote from public documents of the 
United States proofs of extravagant expenditure sanc- 
tioned by Congress, and something more than extravagant 

" Question 5. — Generally, do you approve or do you disapprove of 
that system ] and what are the main grounds on which your appro- 
bation or disapprobation of it is founded ] 

" Answer. — Although I individually should prefer arrangements 
under which the tenets of my own Church were directly taught in 
the common schools, yet, on the whole, I approve of the present 
system, because it ensures the means of providing a more efficient 
system of instruction than could permanently be maintained for 
all the children of the commonwealth in any other way." 

The approval of the right reverend gentleman is thus shown to 
be founded, not on religious grounds, but on the fact that in his 
opinion a more efficient system of instruction could not be per- 
manently maintained for all. This is very different from an asser- 
tion that he " was quite satisfied with the working of the present 
system." 

A writer in a periodical has stated that I was only two days in 
Boston, and therefore had no right to give an opinion upon the 
schools there or in that neighbourhood. I was in Boston eleven 
days, from the 25th to the 27th of August, and from the 5th to the 
14th of November, 1851. 

[Since the above was written the official declaration of the num- 
ber of votes upon the questions submitted to the electors of Massa- 
chusetts, in November last, have reached this country. The votes 
for the proposed new Constitution were — yeas, 63,222; nays, 68,150 ; 
majority against, 4928. For Sectarian Schools, 65,111 ; against, 
65,512 ; majority against, 401. While, therefore, a purely secular 
system is being advocated here, on the strength of the example 
of Massachusetts, public opinion there is evidently undergoing a 
change upon that subject.] 



358 NOTES. 

contracts granted by public officers to individuals. But 
this book has been written, not to excite irritation, or de- 
signedly to give offence, or for the purposes of flattery, 
or to encourage national self-complacency, but simply to 
illustrate great political principles, in their ordinary and 
natural action. I therefore confine myself to the follow- 
ing summary, which has the appearance of being authentic, 
and which, if so, contributes to the proof that democratic 
majorities are not always the most careful guardians of the 
public purse : — 

(From the Daily National Intelligencer.) 

Washington, Sept. 25, 1853. 
11 Amount of Appropriations reported at the last Session 
of Congress, by the Committee of Ways and Means, for 
the Service of the Year ending June 30, 1853 : — 

Dollars. 

Civil and Diplomatic 6,052,770 

Invalid Pensions 1,366,240 

Navy ditto 45,000 

Indian Department 879,000 

Army 7,396,775 

Military Academy 135,958 

Fortifications 141,500 

Rivers and Harbours . . .... 1,501,290 

Navy 6,705,467 

Transportation of Mail by Ocean Steamers 1,467,250 

Lighthouses 497,025 

26,188,275 
In the passage through the House of Representatives 
the Democratic majority added to the above sum, as 
follows : — 



NOTES. 



359 



Civil and Diplomatic . 
Indian Appropriations 
Rivers and Harbours . 

Navy 

Ocean Mail Steamers 



Lighthouses 



Dollars. 
1,341,502 
431,861 

45,000 

20,000 

473,000 

31,000 



Dollars. 



2,342,363 



" With these additions the bills went to the Senate, 
where the Democratic majority thought their brethren 
of the Lower House had not put their hands deep enough 
into the public Treasury, and they piled on the follow- 
ing accounts in addition : — 

Civil and Diplomatic . . . 904,014 

Indian Affairs 675,565 

Army 840,167 

Military Academy .... 3,100 

Rivers and Harbours . . . 578,000 

Navy 231,250 

Lighthouses 181,120 



3,413,216 



In addition to these there were " inde- 
finite appropriations,"^, e. "appropriations 
without specifying the amounts for the dif- 
ferent items respectively 1,300,000 



Total 7,035,712"* 

It thus appears that (to take the lowest sum) 7,035,712 
dollars (upwards of £1,400,000) were added to the expendi- 
ture of 1852-3 by Congress, beyond the sum (26,188,275 
dollars, about £5,300,000) thought necessary by the Com- 

* This is the total given ; but the figures make it 7,055,579. 



360 NOTES. 

inittee of Ways and Means for the year ; or, in other words, 
an addition of nearly 28 per cent, to the sum they had 
thought sufficient for the public service. 

It is further to be borne in mind that this Democratic 
majority was in opposition to the general policy of the 
President and his Ministers, who were of the "Whig party. 



Note XV. 

Presidents of the United States from the adoption of 
the Constitution : — 

1. George Washington April 30, 1789, to March 3, 1797. 

2. John Adams March 4, 1797, to March 3, 1801. 

3. Thomas Jefferson March 4, 1801, to March 3, 1809. 

4. James Madison March 4, 1809, to March 3, 1817. 

5. James Munroe March 4, 1817, to March 3, 1825. 

6. John Quincy Adams March 4, 1825, to March 3, 1829. 

7. Andrew Jackson, March 4, 1829, to March 3, 1837. 

8. Martin Yan Buren March 4, 1837, to March 3, 1841. 

9. Wm. Henry Harrison ...March 4, 1841, to April 4, 1841. 

10. John Tyler April 4, 1841, to March 3, 1845. 

11. James Knox Polk March 4, 1845, to March 3, 1849. 

12. Zachary Taylor March 4, 1849, to July 9, 1850. 

13. Millard Fillmore July 9, 1850, to March 3, 1853. 

; 14. Franklin Pierce March 4, 1853. 



NOTES. 



361 



Note XVI. 



LIST OF STATES. 



The Thirteen Original States :- 



1. New Hampshire 

2. Massachusetts 

3. Khc-de Island 

4. Connecticut . 

5. New York . 

6. New Jersey . 

7. Pennsylvania 



Population 

in 1850. 

317,864 

994,499 

147,544 

370,791 

3,090,022 

489,333 

2,311,681 



8. Delaware 

9. Maryland 

10. Virginia . . 

11. North Carolina 

12. South Carolina 

13. Georgia . . 



Population 
in 1850. 
91,535 

583,035 
1,421,081 
868,903 
668,507 
905,999 



New States: — 



14. Vermont 

15. Kentucky 

16. Tennessee 

17. Ohio 

18. Louisiana 

19. Indiana 

20. Mississippi 

21. Illinois 

22. Alabama 

23. Maine 

24. Missouri 

25. Arkansas 

26. Michigan 

27. Florida 

28. Texas 

29. Iowa . 

30. Wisconsin 

31. California 



Admitted into 
the Union, a.d. 

1791 

1792 

1796 

1802 

1812 

1816 

1817 

1818 

1819 

1820 

1821 

1836 

1837 

1845 

1845 

1846 

1848 

1850 



Population 
in 1850. 

313,611 

982,405 

1,002,625 

1,977,031 

500,763 

988,734 

592,853 

858,298 

771,671 

583,088 

682,043 

209,639 

397,654 

87,387 

187,403 

192,214 

304,226 

200,000 

R 



362 



NOTES. 



Territories : — 






Admitted into 


Population 




the Union, a.d. 


in 1850. 


Oregon ..... 


1848 


20,000 


Minesota .... 


1849 


6,192 


Utah (Mormon Valley) 


1850 


25,000 


New Mexico .... 


1850 




Nebrasca (about to be organised) 


1854 


No return 


District of Columbia 


1791 


48,000 


Total Population 


23,269,498 



P P E N D I X. 



(See page 147.) 

AN ACT TO PREVENT FRAUDS UPON THE 
TREASURY OF THE UNITED STATES. 

Be it enacted by the Senate and House of Representatives 
of the United States of America in Congress assembled, 
That all transfers and assignments hereafter made of any 
claim upon the United States, or any part or share thereof, 
or interest therein, whether absolute or conditional, and 
whatever may be the consideration therefore ; and all powers 
of attorney, orders, or other authorities for receiving pay- 
ment of any such claim, or any part or share thereof, shall 
be absolutely null and void, unless the same shall be freely 
made and executed in the presence of at least two attesting 
witnesses, after the allowance of such claim, the ascertain- 
ment of the amount due, and the issuing of a warrant for 
the payment thereof. 

Sec. 2. And be it further enacted, That any officer of 
the United States, or person holding any place of trust or 
profit, or discharging any official function under or in con- 
nection with any executive department of the Government 
of the United States, or under the Senate or House of 
Representatives of the United States, who, after the pas- 
sage of this Act, shall act as an agent or attorney for pro- 

R 2 



364 APPENDIX. 

secuting any claim against the United States, or shall in 
any manner, or by any means otherwise than in the dis- 
charge of his proper official duties, aid or assist in the 
prosecution or support of any such claim or claims, or 
shall receive any gratuity, or any share of or interest in 
any claim, from any claimant against the United States, 
with intent to aid or assist, or in consideration of having 
aided or assisted in the prosecution of such claim, shall be 
liable to indictment as for a misdemeanor in any court of 
the United States having jurisdiction thereof, and, on 
conviction, shall pay a fine not exceeding five thousand 
dollars, or suffer imprisonment in the penitentiary not 
exceeding one year, or both, as the court in its discretion 
shall adjudge. 

Sec. 3. And be it further enacted, That any senator or 
representative in Congress who, after the passage of this 
Act, shall, for compensation paid or to be paid, certain or 
contingent, act as agent or attorney for prosecuting any 
claim or claims against the United States, or shall in any 
manner, or by any means, for such compensation, aid or 
assist in the prosecution or support of any such claim or 
claims, or shall receive any gratuity or any share of or 
interest in any claim, from any claimant against the United 
States, with intent to aid or assist, or in consideration of 
having aided or assisted, in the prosecution of said claim, 
shall be liable to indictment as for a misdemeanor in any 
court of the United States having jurisdiction thereof, and, 
on conviction, shall pay a fine not exceeding five thousand 
dollars, or suffer imprisonment in the penitentiary not 
exceeding one year, or both, as the court in its discretion 
shall adjudge. 

Sec 4. And be it further enacted, That any person who 
shall wilfully and knowingly destroy, or attempt to destroy, 



APPENDIX. 365 

or, with intent to steal or destroy, shall take and carry 
away any record, paper, or proceeding of a court of justice, 
filed or deposited with any clerk or officer of such court, 
or any paper or document or record filed or deposited in 
any public office, or with any judicial or public officer, 
shall, without reference to the value of the record, paper, 
document, or proceeding so taken, be deemed guilty of 
felony, and, on conviction in any court of the United States 
having jurisdiction thereof, shall pay a fine not exceeding 
two thousand dollars, or suffer imprisonment in a peniten- 
tiary not exceeding three years, or both, as the court in its 
discretion shall adjudge. 

Sec. 5. And be it further enacted, That any officer hav- 
ing the custody of any record, document, paper, or proceed- 
ing specified in the last preceding section of this Act, who 
shall fraudulently take away, or withdraw, or destroy any 
such record, document, paper, or proceeding filed in his 
office, or deposited with him, or in his custody, shall be 
deemed guilty of felony in any court of the United States 
having jurisdiction thereof, and, on conviction, shall pay a 
fine not exceeding two thousand dollars, or suffer imprison- 
ment in a penitentiary not exceeding three years, or both, 
as the court in its discretion shall adjudge, and shall for- 
feit his office, and be for ever afterwards disqualified from 
holding any office under the Government of the United 
States. 

Sec 6. And be it further enacted, That if any person or 
persons shall, directly or indirectly, promise, offer, or give, 
or cause or procure to be promised, offered, or given, any 
money, goods, right in action, bribe, present, or reward, or 
any promise, contract, undertaking, obligation, or security 
for the payment or delivery of any money, goods, right in 
action, bribe, present, or reward, or any other valuable 



366 APPENDIX. 

thing whatever, to any member of the Senate or House of 
Representatives of the United States after his election as 
such member, and either before or after he shall have 
qualified and taken his seat, or to any officer of the United 
States, or person holding any place of trust or profit, or 
discharging any official function under, or in connection 
with any department of the Government of the United 
States, or under the Senate or House of Representatives 
of the United States, after the passage of this Act, with 
intent to influence his vote or decision on any question, 
matter, cause, or proceeding, which may then be pending, 
or may by law, or under the Constitution of the United 
States be brought before him in his official capacity, or in 
his place of trust or profit, and shall be thereof convicted, 
such person or persons so offering, promising, or giving, 
or causing or procuring to be promised, offered, or given, 
any such money, goods, right in action, bribe, present, or 
reward, or any promise, contract, undertaking, obligation, 
or security for the payment or delivery of any money, 
goods, right in action, bribe, present, or reward, or other 
valuable thing whatever, and the member, officer, or per- 
son, who shall in any wise accept or receive the same, or 
any part thereof, shall be liable to indictment, as for a high 
crime and misdemeanor, in any court of the United States 
having jurisdiction for the trial of crimes and misde- 
meanors ; and shall, upon conviction thereof, be fined not 
exceeding three times the amount so offered, promised, or 
given, and imprisoned in a penitentiary not exceeding 
three years ; and the person convicted of so accepting or 
receiving the same, or any part thereof, if an officer or 
person holding any such place of trust or profit as afore- 
said, shall forfeit his office or place ; and any person so 
convicted under this section shall for ever be disqualified 



APPENDIX. 367 

to hold any office of honour, trust, or profit, under the 
United States. 

Sec. 7. And be it further enacted, That the provisions 
of this Act, and of the Act of July twenty-ninth, eighteen 
hundred and forty-six, entitled " An Act in relation to the 
payment of claims," shall apply and extend to all claims 
against the United States, whether allowed by special Acts 
of Congress, or arising under general laws or treaties, or 
in any other manner whatever. 

Sec. 8. And be it further enacted, That nothing in the 
second and third sections of this Act contained shall be 
construed to apply to the prosecution or defence of any 
action or suit in any judicial court of the United States. 

Approved February 26, 1853. 



368 APPENDIX. 



CONSTITUTION 



UNITED STATES OF AMEBIC A. 



We, the people of the United States, in order to form a more 
perfect union, establish justice, ensure domestic tranquillity, 
provide for the common defence, promote the general wel- 
fare, and secure the blessings of liberty to ourselves and 
our posterity, do ordain and establish this Constitution for 
the United States of America. 

ARTICLE I. 

Sectjon 1. 

1. All legislative powers herein granted shall be vested 
in a congress of the United States, which shall consist of 
a senate and house of representatives. 

Section 2. 

1. The house of representatives shall be composed of 
memhers chosen every second year by the people of the 
several states, and the electors in each state shall have the 
qualifications requisite for electors of the most numerous 
branch of the state legislature. 



APPENDIX. 369 

2. No person shall be a representative who shall not 
have attained to the age of twenty-five years, and been seven 
years a citizen of the United States, and who shall not, 
when elected, be an inhabitant of that state in which he 
shall be chosen. 

3. Eepresentatives and direct taxes shall be apportioned 
among the several states which may be included within 
this Union, according to their respective numbers, which 
shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of 
years, and excluding Indians not taxed, three-fifths of all 
other persons. The actual enumeration shall be made 
within three years after the first meeting of the congress 
of the United States, and within every subsequent term of 
ten years, in such manner as they shall by law direct. 
The number of representatives shall not exceed one for 
every thirty thousand, but each state shall have at least 
one representative ; and, until such enumeration shall be 
made, the state of New Hampshire shall be entitled to 
choose three, Massachusetts eight, Rhode Island and Pro- 
vidence Plantations one, Connecticut five, New York six, 
New Jersey four, Pennsylvania eight, Delaware one, Mary- 
land six, Virginia ten, North Carolina five, South Carolina 
five, and Georgia three. 

4. When vacancies happen in the representation from 
any state, the executive authority thereof shall issue writs 
of election to fill such vacancies. 

5. The house of representatives shall choose their 
speaker and other officers, and shall have the sole power 
of impeachment. 

Section 3. 

1 . The senate of the United States shall be composed 

R 3 



370 APPENDIX. 

of two senators from each state, chosen by the legislature 
thereof, for six years ; and each senator shall have one 
vote. 

2. Immediately after they shall be assembled, in con- 
sequence of the first election, they shall be divided as 
equally as may be into three classes. The seats of the 
senators of the first class shall be vacated at the expiration 
of the second year, of the second class at the expiration of 
the fourth year, and of the third class at the expiration of 
the sixth year, so that one-third may be chosen every 
second year; and if vacancies happen, by resignation or 
otherwise, during the recess of the legislature of any state, 
the executive thereof may make temporary appointments, 
until the next meeting of the legislature, which shall then 
fill such vacancies. 

3. No person shall be a senator who shall not have 
attained to the age of thirty years, and been nine years a 
citizen of the United States, and who shall not, when 
elected, be an inhabitant of that state for which he shall 
be chosen. 

4. The vice-president of the United States shall be pre- 
sident of the senate, but shall have no vote unless they be 
equally divided. 

5. The senate shall choose their other officers, and also 
a president pro tempore, in the absence of the vice-pre- 
sident, or when he shall exercise the office of president of 
the United States. 

6. The senate shall have the sole power to try all im- 
peachments. When sitting for that purpose, they shall 
be on oath or affirmation. When the president of the 
United States is tried, the chief justice shall preside : and 
no person shall be convicted without the concurrence of 
two-thirds of the members present. 



APPENDIX. 371 

7. Judgment, in cases of impeachment, shall not extend 
further than to removal from office, and disqualification to 
hold and enjoy any office of honour, trust, or profit, under 
the United States ; but the party convicted shall neverthe- 
less be liable and subject to indictment, trial, judgment, 
and punishment, according to law. 

Section 4. 

1. The times, places, and manner of holding elections 
for senators and representatives, shall be prescribed in 
each state by the legislature thereof; but the congress 
may at any time, by law, make or alter such regulations, 
except as to the places of choosing senators. 

2. The congress shall assemble at least once in every 
year, and such meeting shall be on the first Monday in 
December, unless they shall by law appoint a different 
day. 

Section 5. 

1. Each house shall be the judge of the elections, re- 
turns, and qualifications of its own members, and a majo- 
rity of each shall constitute a quorum to do business ; but 
a smaller number may adjourn from day to day, and may 
be authorised to compel the attendance of absent members, 
in such manner, and under such penalties, as each house 
may provide. 

2. Each house may determine the rules of its proceed- 
ings, punish its members for disorderly behaviour, and, with 
the concurrence of two-thirds, expel a member. 

3. Each house shall keep a journal of its proceedings, 
and from time to time publish the same, excepting such 
parts as may, in their judgment, require secrecy; and the 
yeas and nays of the members of either house on any ques- 



372 APPENDIX. 

tion shall, at the desire of one-fifth of those present, be 
entered on the journal. 

4. Neither house, during the session of congress, shall, 
without the consent of the other, adjourn for more than 
three days, nor to any other place than that in which the 
two houses shall be sitting. 

Section 6. 

1. The senators and representatives shall receive a com- 
pensation for their services, to be ascertained by law, and 
paid out of the treasury of the United States. They shall, 
in all cases, except treason, felony, and breach of the peace, 
be privileged from arrest during their attendance at the 
session of their respective houses, and in going to and re- 
turning from the same ; and for any speech or debate in 
either house, they shall not be questioned in any other 
place. 

2. No senator or representative shall, during the time 
for which he was elected, be appointed to any civil office 
under the authority of the United States, which shall have 
been created, or the emoluments whereof shall have been 
increased during such time ; and no person holding any 
office under the United States, shall be a member of either 
house during his continuance in office. 

Section 7. 

1. All bills for raising revenue shall originate in the 
house of representatives ; but the senate may propose or 
concur with amendments, as on other bills. 

2. Every bill which shall have passed the house of re- 
presentatives and the senate shall, before it become a law, 
be presented to the president of the United States ; if he 
approve he shall sign it, but if not he shall return it, with 



APPENDIX. 373 

his objections, to that house in which it shall have origi- 
nated, who shall enter the objections at large on their 
journal, and proceed to reconsider it. If, after such re- 
consideration, two-thirds of that house shall agree to pass 
the bill, it shall be sent, together with the objections, to 
the other house, by which it shall likewise be reconsidered, 
and, if approved by two-thirds of that house, it shall be- 
come a law. But in all such cases the votes of both 
houses shall be determined by yeas and nays, and the 
names of the persons voting for and against the bill shall 
be entered on the journal of each house respectively. If 
any bill shall not be returned by the president within ten 
days (Sundays excepted) after it shall have been pre- 
sented to him, the same shall be a law, in like manner 
as if he had signed it, unless the congress, by their 
adjournment, prevent its return, in which case it shall not 
be a law. 

3. Every order, resolution, or vote, to which the con- 
currence of the senate and house of representatives may 
be necessary (except on a question of adjournment), shall 
be presented to the president of the United States ; and, 
before the same shall take effect, shall be approved by 
him, or, being disapproved by him, shall be repassed by 
two-thirds of the senate and house of representatives, 
according to the rules and limitations prescribed in the 
case of a bill. 

Section 8. 

The congress shall have power — 

1. To lay and collect taxes, duties, imposts, and excises, 
to pay the debts and provide for the common defence and 
general welfare of the United States ; but all duties, im- 



374 APPENDIX. 

posts, and excises, shall be uniform throughout the United 
States : 

2. To borrow money on the credit of the United 
States : 

3. To regulate commerce with foreign nations, and among 
the several states, and with the Indian tribes : 

4. To establish an uniform rule of naturalisation, and 
uniform laws on the subject of bankruptcies throughout 
the United States : 

5. To coin money, regulate the value thereof, and of 
foreign coin, and fix the standard of weights and mea- 
sures : 

6. To provide for the punishment of counterfeiting the 
securities and current coin of the United States : 

7. To establish post-offices and post- roads: 

8. To promote the progress of science and useful arts, 
by securing, for limited times, to authors and inventors 
the exclusive right to their respective writings and dis- 
coveries : 

9. To constitute tribunals inferior to the supreme court : 

10. To define and punish piracies, and felonies com- 
mitted on the high seas, and offences against the law of 
nations : 

11. To declare war, grant letters of marque and re- 
prisal, and make rules concerning captures on land and 
water : 

12. To raise and support armies, but no appropriation 
of money to that use shall be for a longer term than two 
years : 

13. To provide and maintain a navy : 

14. To make rules for the government and regulation 
of the land and naval forces: 

15 To provide for calling forth the militia to execute 



APPENDIX. 375 

the laws of the Union, suppress insurrections, and repel 
invasions : 

16. To provide for organising, arming, and disciplining 
the militia, and for governing such part of them as may 
be employed in the service of the United States, reserving 
to the states respectively the appointment of the officers, 
and the authority of training the militia according to the 
discipline prescribed by congress : 

17. To exercise exclusive legislation in all cases what- 
soever, over such district (not exceeding ten miles square), 
as may, by cession of particular states, and the acceptance 
of congress, become the seat of government of the United 
States, and to exercise like authority over all places pur- 
chased by the consent of the legislature of the state in 
which the same shall be, for the erection of forts, maga- 
zines, arsenals, dock-yards, and other needful buildings: — 
And 

18. To make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the 
government of the United States, or in any department or 
officer thereof. 

Section 9. 

1. The migration or importation of such persons as any 
of the states now existing shall think proper to admit, 
shall not be prohibited by the congress prior to the year 
one thousand eight hundred and eight, but a tax or duty 
may be imposed on such importation, not exceeding ten 
dollars for each person. 

2. The privilege of the writ of habeas corpus shall not 
be suspended, uuless when in cases of rebellion or invasion 
the public safety may require it. 



376 APPENDIX. 

3. No bill of attainder or ex post facto law shall be 



4. No capitation, or other direct tax shall be laid, unless 
in proportion to the census, or enumeration hereinbefore 
directed to be taken. 

5. No tax or duty shall be laid on articles exported 
from any state. No preference shall be given, by any 
regulation of commerce or revenue, to the ports of one 
state over those of another ; nor shall vessels bound to 
or from one state be obliged to enter, clear, or pay duties 
in another. 

6. No money shall be drawn from the treasury, but in 
consequence of appropriations made by law ; and a re- 
gular statement and account of the receipts and expen- 
ditures of all public money shall be published from time 
to time. 

7. No title of nobility shall be granted by the United 
States : And no person holding any office of profit or trust 
under them shall, without. the consent of the congress, 
accept of any present, emolument, office, or title of any kind 
whatever, from any king, prince, or foreign state. 

Section 10. 

1. No state shall enter into any treaty, alliance, or con- 
federation; grant letters of marque and reprisal; coin 
money ; emit bills of credit ; make anything but gold and 
silver coin a tender in payment of debts ; pass any bill of 
attainder, ex post facto law, or law impairing the obligation 
of contracts, or grant any title of nobility. 

2. No state shall, without the consent of the congress, 
lay any imposts or duties on imports or exports, ex- 
cept what may be absolutely necessary for executing its 



APPENDIX. 377 

inspection laws ; and the net produce of all duties and 
imposts, laid by any state on imports or exports, shall be 
for the use of the treasury of the United States ; and all 
such laws shall be subject to the revision and control of 
the congress. No state shall, without the consent of con- 
gress, lay any duty of tonnage, keep troops, or ships of 
war, in time of peace, enter into any agreement or com- 
pact with another state, or with a foreign power, or engage 
in war, unless actually invaded, or in such imminent danger 
as will not admit of delay. 

ARTICLE II. 
Section 1. 

1. The executive power shall be vested in a president of 
the United States of America. He shall hold his office 
during the term of four years, and together with the vice- 
president, chosen for the same term, be elected as fol- 
lows : — 

2. Each state shall appoint, in such manner as the 
legislature thereof may direct, a number of electors equal 
to the whole number of senators and representatives to 
which the state may be entitled in the congress : but no 
senator or representative, or person holding an office of 
trust or profit under the United States, shall be appointed 
an elector. 

3. The electors shall meet in their respective states, 
and vote by ballot for two persons, of whom one at least 
shall not be an inhabitant of the same state with them- 
selves. And they shall make a list of all the persons 
voted for, and of the number of votes for each ; which list 
they shall sign and certify, and transmit, sealed, to the 
seat of the government of the United States, directed to 



378 APPENDIX. 

the president of the senate. The president of the senate 
shall, in the presence of the senate and house of represen- 
tatives, open all the certificates, and the votes shall then 
be counted. The person having the greatest number of 
votes shall be the president, if such number be a majority 
of the whole number of electors appointed ; and if there 
be more than one who have such majority, and have an 
equal number of votes, then the house of representatives 
shall immediately choose by ballot one of them for pre- 
sident ; and if no person have a majority, then, from the 
five highest on the list the said house shall in like manner 
choose the president. But in choosing the president the 
votes shall be taken by states, the representation from each 
state having one vote ; a quorum for this purpose shall 
consist of a member or members from two-thirds of the 
states, and a majority of all the states shall be necessary 
to a choice. In every case, after the choice of the pre- 
sident, the person having the greatest number of votes of 
the electors shall be the vice-president. But if there 
should remain two or more who have equal votes, the 
senate shall choose from them by ballot the vice-pre- 
sident. 

4. The congress may determine the time of choosing 
the electors, and the day on which they shall give their 
votes ; which day shall be the same throughout the United 
States. 

5. No person, except a natural-born citizen, or a qitizen 
of the United States at the time of the adoption of this 
Constitution, shall be eligible to the office of president ; 
neither shall any person be eligible to that office who shall 
not have attained to the age of thirty-five years, and been 
fourteen years a resident within the United States. 

6. In case of the removal of the president from office, 



APPENDIX. 379 

or of his death, resignation, or inability to discharge the 
powers and duties of the said office, the same shall devolve 
on the vice-president, and the congress may by law pro- 
vide for the case of removal, death, resignation, or inability, 
both of the president and vice-president, declaring what 
officer shall then act as president, and such officer shall 
act accordingly, until the disability be removed, or a pre- 
sident shall be elected. 

7. The president shall, at stated times, receive for his 
services, a compensation, which shall neither be increased 
nor diminished during the period for which he shall have 
been elected, and he shall not receive within that period 
any other emolument from the United States or any of 
them. 

8. Before he enter on the execution of his office, he 
shall take the following oath or affirmation : 

9. " I do solemnly swear (or affirm), that I will faith- 
fully execute the office of president of the United States, 
and will, to the best of my ability, preserve, protect, and 
defend the Constitution of the United States." 

Section 2. 

1. The president shall be commander-in-chief of the 
army and navy of the United States, and of the militia of 
the several states, when called into the actual service of 
the United States; he may require the opinion, in writing, 
of the principal officer in each of the executive depart- 
ments, upon any subject relating to the duties of their re- 
spective offices, and he shall have power to grant reprieves 
and pardons for offences against the United States, except 
in cases of impeachment. 

2. He shall have power, by and with the advice and 
consent of the senate, to make treaties, provided two-thirds 



380 APPENDIX. 

of the senators present concur ; and he shall nominate, and, 
by and with the advice and consent of the senate, shall 
appoint ambassadors, other public ministers and consuls, 
judges of the supreme court, and all other officers of the 
United States, whose appointments are not herein other- 
wise provided for, and which shall be established by law : 
but the congress may by law vest the appointment of such 
inferior officers, as they think proper, in the president 
alone, in the courts of law, or in the heads of departments. 
3. The president shall have power to fill up all vacancies 
that may happen during the recess of the senate, by grant- 
ing commissions, which shall expire at the end of their 
next session. 

Section 3. 

1. He shall from time to time give to the congress in- 
formation of the state of the Union, and recommend to 
their consideration such measures as he shall judge neces- 
sary and expedient ; he may, on extraordinary occasions, 
convene both houses, or either of them, and in case of dis- 
agreement between them with respect to the time of ad- 
journment, he may adjourn them to such time as he shall 
think proper ; he shall receive ambassadors and other 
public ministers ; he shall take care that the laws be faith- 
fully executed, and shall commission all the officers of the 
United States. 

Section 4. 

1. The president, vice-president, and all civil officers of 
the United States shall be removed from office on impeach- 
ment for, and conviction of, treason, bribery, or other high 
crimes and misdemeanors. 



APPENDIX. 381 

ARTICLE III. 

Section 1. 

1. The judicial power of the United States shall be 
vested in one Supreme Court, and in such inferior courts 
as the congress may from time to time ordain and esta- 
blish. The Judges, both of the supreme and inferior 
courts, shall hold their offices during good behaviour, and 
shall, at stated times, receive for their services a compen- 
sation, which shall not be diminished during their con- 
tinuance in office. 

Section 2. 

1. The judicial power shall extend to all cases, in law 
and equity, arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be made, 
under their authority ; to all cases affecting ambassadors, 
other public ministers, and consuls ; to all cases of ad- 
miralty and maritime jurisdiction ; to controversies to 
which the United States shall be a party; to controversies 
between two or more states, between a state and citizens 
of another state, between citizens of different states, be- 
tween citizens of the same state claiming lands under 
grants of different states, and between a state, or the citi- 
zens thereof, and foreign states, citizens, or subjects. 

2. In all cases affecting ambassadors, other public mi- 
nisters, and consuls, and those in which a state shall be a 
party, the supreme court shall have original jurisdiction. 
In all the other cases before mentioned, the supreme court 
shall have appellate jurisdiction, both as to law and fact, 
with such exceptions, and under such regulations, as the 
congress shall make. 



382 APPENDIX. 

3. The trial of all crimes, except in cases of impeach- 
ment, shall be by jury ; and such trial shall be held in the 
state where the said crimes shall have been committed ; 
but when not committed within any state, the trial shall 
be at such place or places as the congress may hy law 
have directed. 

Section 3. 

1. Treason against the United States shall consist only 
in levying war against them, or in adhering to their 
enemies, giving them aid and comfort. No person shall 
be convicted of treason unless on the testimony of two 
witnesses to the same overt act, or on confession in open 
court. 

2. The congress shall have power to declare the punish- 
ment, of treason, but no attainder of treason shall work 
corruption of blood, or forfeiture, except during the life of 
the person attainted. 

ARTICLE IV. 
Section 1. 

1. Full faith and credit shall be given in each state to 
the public acts, records, and judicial proceedings of every 
other state. And the congress may by general laws pre- 
scribe the manner in which such acts, records, and pro- 
ceedings shall be proved, and the effect thereof. 

Section 2. 

1. The citizens of each state shall be entitled to all 
privileges and immunities of citizens in the several states. 

2. A person charged in any state with treason, felony, 



APPENDIX. 383 

or other crime, who shall flee from justice, and be found 
in another state, shall, on demand of the executive au- 
thority of the state from which he fled, be delivered up, 
to be removed to the state having jurisdiction of the 
crime. 

3. No person held to service or labour in one state, 
under the laws thereof, escaping into another, shall, in 
consequence of any law or regulation therein, be dis- 
charged from such service or labour, but shall be delivered 
up on claim of the party to whom such service or labour 
may be due. 

Section 3. 

1. New states may be admitted by the congress into 
this Union ; but no new state shall be formed or erected 
within the jurisdiction of any other state; nor any state 
be formed by the junction of two or more states, or parts 
of states, without the consent of the legislatures of the 
states concerned, as well as of the congress. 

2. The congress shall have power to dispose of and 
make all needful rules and regulations respecting the ter- 
ritory or other property belonging to the United States ; 
and nothing in this Constitution shall be so construed as 
to prejudice any claims of the United States, or of any 
particular state. 

Section 4. 

1. The United States shall guarantee to every state in 
this Union a republican form of government, and shall 
protect each of them against invasion ; and on application 
of the legislature, or of the executive (when the legisla- 
ture cannot be convened), against domestic violence. 



384 APPENDIX. 



ARTICLE V. 

1. The congress, whenever two-thirds of both houses 
shall deem it necessary, shall propose amendments to this 
Constitution, or, on the application of the legislatures of 
two-thirds of the several states, shall call a convention for 
proposing amendments, which, in either case, shall be 
valid to all intents and purposes, as part of this Constitu- 
tion, when ratified by the legislatures of three-fourths of 
the several states or by conventions in three-fourths thereof, 
as the one or the other mode of ratification may be pro- 
posed by the congress : Provided, that no amendment, 
which may be made prior to the year one thousand eight 
hundred and eight, shall in any manner affect the first 
and fourth clauses in the ninth section of the first article ; 
and that no state, without its consent, shall be deprived of 
its equal suffrage in the senate. 

ARTICLE VI. 

1. All debts contracted and engagements entered into, 
before the adoption of this Constitution, shall be as valid 
against the United States under this Constitution, as under 
the confederation. 

2. This Constitution, and the laws of the United States 
which shall be made in pursuance thereof ; and all treaties 
made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land ; and 
the judges in every state shall be bound thereby, any- 
thing in the constitution or laws of any state to the con- 
trary notwithstanding. 

3. The senators and representatives before mentioned, 
and the members of the several state legislatures, and all 



APPENDIX. 385 

executive and judicial officers, both of the United States 
and of the several states, shall be bound, by oath or af- 
firmation, to support this Constitution; but no religious 
test shall ever be required as a qualification to any office 
or public trust under the United State3. 

ARTICLE VII. 

1. The ratification of the conventions of nine states 
shall be sufficient for the establishment of this Constitu- 
tion between the states so ratifying the same. 



386 APPENDIX. 



AMENDMENTS TO THE CONSTITUTION. 



ARTICLE I. 



Congress shall make no law respecting an establishment 
of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press ; or the 
right of the people peaceably to assemble, and to petition 
the government for a redress of grievances. 

ARTICLE II. 

A well-regulated militia being necessary to the security 
of a free state, the right of the people to keep and bear 
arms shall not be infringed. 

ARTICLE III. 

"No soldier shall, in time of peace, be quartered in any 
house without the consent of the owner ; nor in time of 
war, but in a manner to be prescribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated ; and no warrants shall 
issue, but upon probable cause, supported by oath or 
affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized. 



APPENDIX. 387 

ARTICLE V. 

No person shall be held to answer for a capital or other- 
wise infamous crime, unless on a presentment or indict- 
ment of a grand jury, except in cases arising in the land or 
naval forces, or in the militia, when in actual service, in 
time of war or public danger; nor shall any person be sub- 
ject for the same offence to be twice put in jeopardy of life 
or limb ; nor shall he be compelled, in any criminal case, 
to be a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law ; nor shall 
private property be taken for public use without just com- 
pensation. 

ARTICLE VI. 
In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of 
the state and district wherein the crime shall have been 
committed, which district shall have been previously ascer- 
tained by law ; and to be informed of the nature and cause 
of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining 
witnesses in his favour; and to have the assistance of 
counsel for his defence. 

ARTICLE VII. 
In suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury shall 
be preserved ; and no fact tried by a jury shall be other- 
wise re-examined in any court of the United States, than 
according to the rules of the common law. 

ARTICLE VIII. 
Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 



388 APPENDIX. 

ARTICLE IX. 

The enumeration in the Constitution of certain rights 
shall not be construed to deny or disparage others retained 
by the people. 

ARTICLE X. 

The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the states, are re- 
served to the states respectively, or to the people. 

ARTICLE XL 

The judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United States by 
citizens of another state, or by citizens or subjects of any 
foreign state. 

ARTICLE XII. 

1. The electors shall meet in their respective states, 
and vote by ballot for president and vice-president, one of 
whom, at least, shall not be an inhabitant of the same state 
with themselves ; they shall name in the ballots the per- 
son voted for as president, and in distinct ballots the per- 
son voted for as vice-president ; and they shall make dis- 
tinct lists of all persons voted for as president, and of all 
persons voted for as vice-president, and of the number of 
votes for each, which list they shall sign and certify, and 
transmit sealed to the seat of the government of the United 
States, directed to the president of the senate ; the pre- 
sident of the senate shall, in the presence of the senate 
and house of representatives, open all the certificates, and 
the votes shall then be counted: the person having the 
greatest number of votes for president, shall be the pre- 



APPENDIX. 389 

sident, if such number be a majority of the whole number 
of electors appointed ; and if no person have such majority, 
then from the persons having the highest numbers, not 
exceeding three, on the list of those voted for, as president, 
the house of representatives shall choose immediately, by 
ballot, the president. But in choosing the president, the 
votes shall be taken by states, the representation from 
each state having one vote; a quorum for this purpose 
shall consist of a member or members from two-thirds of 
the states, and a majority of all the states shall be neces- 
sary to a choice. And if the house of representatives shall 
not choose a president whenever the right of choice shall 
devolve upon them, before the fourth day of March next 
following, then the vice-president shall act as president, as 
in the case of the death or other constitutional disability 
of the president. 

2. The person having the greatest number of votes as 
vice-president, shall be the vice-president, if such number 
be a majority of the whole number of electors appointed ; 
and if no person have a majority, then from the two highest 
numbers on the list, the senate shall choose the vice-pre- 
sident : a quorum for the purpose shall consist of two-thirds 
of the whole number of senators, a majority of the whole 
number shall be necessary to a choice. 

3. But no person constitutionally ineligible to the office 
of president, shall be eligible to that of vice-president of 
the United States. 



Albemarle Street, 

January, 1854. 



MR. MURRAY'S 
LIST OF NEW WOKKS. 

^ . -■ 

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10 LIST OF WORKS 



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ELWIN'S (Rev. W.) Lives of Eminent British Poets. From 

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ENGLAND (History op) From the Peace of Utrecht to the Peace 

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and France under the House" of Lancaster* 



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ESKIM AUX (The) and English Vocabulary, for the use of Travellers 

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ESSAYS FROM " THE TIMES." Being a Selection from the 
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PUBLISHED BY MR. MURRAY. 11 

ESSEX (The Earls of) Their Lives and Letters. 1540—1646. 

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EXETER'S (Bishop of) Letters to the late Charles Butler, on the 

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Sermons. Preached during the Visitation of the Bishop 

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FAIRY RING (The), A Collection of Tales and Stories for Young 
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FERGUSON'S (Robert, M.D.) Essays on the Diseases of Women. 

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FEUERBACH'S Remarkable German Crimes and Trials. Trans- 
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12 LIST OF WORKS 



FLOWER GARDEN (The). An Essay reprinted from the 
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FRANCE (History of). From the Conquest by the Gauls to the Death 

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FRENCH (The) in Algiers ; The Soldier of the Foreign Legion— 

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GALTON'S (Francis) Exploring Expedition in Tropical South 
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GIBBON'S (Edward) Decline and Fall of the Roman Empire. 

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GIFFARD'S (Edward) Visit to the Ionian Islands, Athens, and 
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Deeds of Naval Daring ; or, Anecdotes of the British 

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GILLY'S (Rev. Dr.) Romaunt Version of the Gospel of St. John, 

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GOLDSMITH'S (Oliver) Works. New Library Edition, now 

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PUBLISHED BY MR. MURRAY. 13 



GLEIG'S (Rev. G. R.) Campaigns of the British Army at Washing- 
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Story of the Battle of Waterloo. Compiled from Public 



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— Life of Robert Lord dire. Post 8vo. 5s. 



Life and Letters of General Sir Thomas Munro. Post 

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(Lady Duff), Amber- Witch : the most interesting 

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GRENVILLE (The) LETTERS AND DIARIES ; being the Public 

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GREEK GRAMMAR FOR SCHOOLS. Abridged from Matthise. 

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12mo. 3s. 
Accidence for Schools. Abridged from Matthise. 

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Vols. I. —II.— Legendary Greece. Grecian History to the Reign of 

Peisistratus at Athens. 
Vols. III.— IV.— History of Early Athens, and the Legislation of Solon. 

Grecian Colonies. View of the Contemporary Nations surrounding 

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(b.c. 421 to 394). Socrates and the Sophists. 
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14 LIST OF WORKS 



GUIZOT (M.), on the Causes of the Success of the English 
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■ ■ Democracy in France. Sixth Edition. 8vo. 3s. 6d. 



GURWOOD'S (Col.) Despatches of the Duke of Wellington during 

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— Selections from the Wellington Despatches 



and General Orders. New Edition. Svo. 18s. 

Speeches in Parliament of Wellington. 



2 Vols. Svo. 

GUSTAVUS YASA (History of), King of Sweden. With Extracts 

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HALFORD'S (Sir Henry) Popular Essays and Orations. Third 

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MARRY AT'S (Joseph) History of Pottery and Porcelain, in the 
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24 LIST OF WORKS 



MATTHIiE'S (Augustus) Greek Grammar for Schools. Abridged 
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Greek Accidence for Schools. Abridged by the 

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PUBLISHED BY MR. MURRAY. 27 



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BRADBVKY AKD EVAKS, miNTERS, WUITEFIUARS. 






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